It is a matter of utmost significance that while ruling on the necessity of bodily injuries to prove sexual assault, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Dalip Kumar @ Dalli vs State of Uttaranchal in Criminal Appeal No. 1005 of 2013 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on January 16, 2025 has minced absolutely just no words to reiterate in no uncertain terms that bodily injuries are not necessary to prove sexual assault. The top court pointed out that it is a common myth that sexual assault must leave injuries. While elaborating further, the Apex Court also laid bare explaining that victims react to traumas in different ways and it is not just to expect a uniform reaction.

At the very outset, this brief, brilliant, bold and balanced judgment authored by a Bench of Apex Court comprising of Hon’ble Mr Justice Hrishikesh Roy and Hon’ble Mr Justice SVN Bhatti sets the ball in motion by first and foremost putting forth in para 1 that:
Heard Mr. Avneesh Garg, learned counsel appearing for the appellant. The State of Uttarakhand is represented by Mr. Advitiya Awasthi, learned counsel.

While laying bare the purpose of the challenge in the criminal appeal, the Apex Court Bench then discloses in para 2 of this robust judgment stating that:
The challenge here is to the judgment and order dated 25.03.2013 in the Criminal Appeal No. 203 of 2003 whereunder the learned Judge of the High Court of Uttarakhand has upheld the conviction of the appellant under Sections 363 and 366-A of the IPC.

As we see, the Apex Court Bench then specifies in para 3 of this rational judgment observing that:
According to the prosecution, the appellant had kidnapped the daughter of one Jawahari Lal (PW-1), who had filed the FIR No. 2 of 1998. In the said FIR, the appellant was not named but he was charged along with other accused under Sections 363, 366-A, 366, 376 read with Sections 149 and 368 of the IPC.

As it turned out, the Apex Court Bench then enunciates in para 4 of this pragmatic judgment revealing that:
The learned Sessions Judge, Pauri Garhwal in the Sessions Trial No. 40 of 1998 evaluated the evidence of the prosecutrix (PW2), her father Jawahari Lal (PW-1), Rajendra Singh (PW-4) - treated as an eye-witness, and the evidence of the Doctor (PW-3). The trial court acquitted the accused of the more serious charges but convicted the appellant and another accused, under Sections 363 and 366-A of the IPC.

As things stands, the Apex Court Bench then points out in para 5 of this progressive judgment disclosing that:
On appeal by the accused, the High Court under the impugned judgment upheld the trial court verdict of conviction against the appellant, leading to the present appeal.

To put things in perspective, the Apex Court Bench envisages in para 6 of this pertinent judgment while elaborating on the facts of the case stating that:
The prosecutrix was recovered and the recovery memo (Ex.K-2) indicates that she was recovered from the house of the appellant Dalip Kumar @ Dalli and then, on the spot, she was given over in custody to her father. The evidence of the prosecutrix (PW-2) herself is the most significant. In her testimony, she stated that talks of her marriage with the appellant was going on but her father was opposed to the marriage as both belong to different castes. In her cross-examination, the PW-2 clearly indicated that she voluntarily went with the appellant and she never shouted or demonstrated that she was being abducted by the appellant. In fact, her younger sister Sarita saw the prosecutrix going with the appellant near her school but unnaturally, Sarita was never presented as a witness in the case. That apart, although the alleged incident had happened on 18.03.1998 at around 3:00 p.m. and Sarita reached home soon after seeing the prosecutrix proceeding with the appellant, information about the so-called alleged abduction was never given to the police and the FIR came to be lodged at 7:00 p.m. on 19.03.1998 (next day evening).

It is worth noting that the Apex Court Bench notes in para 7 of this extremely commendable judgment mentioning that:
The evidence of the Doctor (PW-3) is vital and relevant. She examined the prosecutrix soon after the alleged incident and observed that there was no sign of injury on her person. She was overall normal and no injury or swelling was found in her person. Sexual assault on the prosecutrix was completely ruled out by the PW-3. She was also referred to a Radiologist and her report is marked as Ex.K-3. The Doctor opined that the age of the prosecutrix will be in the range of 16-18 years.

Most significantly and most remarkably, the Apex Court Bench then encapsulates in para 8 what constitutes the cornerstone of this notable judgment postulating that:
We must caution that bodily injuries are not necessary to prove sexual assault (State of UP v Chotey Lal (2011) 2 SCC 550; BC Deva v State of Karnataka (2007) 12 SCC 122) and neither it is important to raise a hue or cry. In this regard, the Supreme Court’s Handbook on Gender stereotypes(2023) provides as under:

Different people react differently to traumatic events. For example, the death of a parent may cause one person to cry publicly whereas another person in a similar situation may not exhibit any emotion in public. Similarly, a woman’s reaction to being sexually assaulted or raped by a man may vary based on her individual characteristics. There is no correct or appropriate way in which a survivor or victim behaves.

Most forthrightly, the Apex Court Bench then expounds in para 9 of this noteworthy judgment stating that:
It is a common myth that sexual assault must leave injuries. Victims respond to trauma in varied ways, influenced by factors such as fear, shock, social stigma or feelings of helplessness. It is neither realistic nor just to expect a uniform reaction. The stigma associated with sexual assault often creates significant barriers for women, making it difficult for them to disclose the incident to others. In the present case however, the prosecutrix herself had clearly indicated that she was not forcibly taken away by the appellant. The above evidence indicates that the ingredients for sustaining a charge under Section 366-A of the IPC of abductions with the intent to illicit intercourse of the prosecutrix, was totally absent in the present case. Therefore, the conviction of the appellant under Section 366-A IPC cannot be sustained.

Be it noted, the Apex Court Bench notes in para 10 of this creditworthy judgment postulating that:
Insofar as the conviction for kidnapping under Section 363 IPC, another witness to prove the charge of kidnapping would be the testimony of the prosecutrix’s sister – Sarita. She was however withheld by the prosecution. The age of the prosecutrix as per the opinion of the Doctor as earlier noted ranged between 16-18 years and in the absence of any contrary evidence, the possibility of the prosecutrix, being of 18 years age, cannot entirely be ruled out.

It would be instructive to note that the Apex Court Bench then hastens to add in para 11 of this refreshing judgment noting that:
The evidence of the prosecutrix does not at all support the case of the prosecution. The independent eye-witness Rajendra Singh (PW-4) also did not support the prosecution case on recovery and was therefore subjected to cross-examination by the prosecution. The cross-examination of PW-4 is appreciated and the evidence lets down the theory of recovery as evidenced through Ex.K-2.

Finally and as a corollary, the Apex Court Bench then concludes by holding in para 12 of this remarkable judgment that:
We are therefore of the view that to sustain the conviction of the appellant on the basis of evidence adduced, would not at all be justified. The prosecution failed to prove the ingredients of both Sections 363 and 366-A of the IPC. The impugned judgment is accordingly set aside and quashed. The appellant stands discharged of the bail bond furnished by him. The appeal is accordingly allowed.

All said and done, the bottom-line of this most enlightening judgment is that the Apex Court has made it indubitably clear that bodily injuries is not necessary to prove sexual assault. It is generally assumed that bodily injuries must take place to prove sexual assault. But Supreme Court has dispelled all such misgivings and made it known in no uncertain terms that it is a common myth that sexual assault must leave injuries while in reality this is not the case.

Needless to say, it was also made crystal clear by the top court that neither is it important for the victim to raise a hue or cry to prove sexual assault as victims respond to traumas in varied ways as mentioned herein aforesaid. The appellant thus got acquitted on merit as the victim’s testimony clearly indicated that she voluntarily went with the appellant. Apart from this, the victim’s younger sister saw the victim going with the appellant near the school yet she was never presented as a witness in the case. We thus see that the appeal of the appellant was allowed and the impugned judgment was set aside. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh