Crl. A. @S.L.P. (Crl.) No.8021 of 2009
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. Of 2011
[Arising out of S.L.P. (Crl.) No.8021 of 2009]
Krishan Kumar Malik ...Appellant
Versus
State of Haryana ...Respondent
J U D G M E N T
Deepak Verma, J.
1. Leave granted.
2. In all, eight accused were charged and prosecuted for
commission of alleged offences under Section 366 and
376 (2) (g) of the Indian Penal Code (hereinafter
shall be referred as `I.P.C.') for abducting
prosecutrix and then committing rape on her. Trial
Court after appreciation of evidence on record found
all the eight accused guilty for commission of offence
punishable under Section 366 and in addition to it,
found present Appellant (accused) Krishan Kumar Malik,
Vijay Dua, Krishan Takkar and Krishan @ Kaka, guilty
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
2
for commission of offences under Section 376 (2) (g)of
the IPC. The said four accused were awarded a sentence
of ten years R.I. and a fine of Rs. 2000/- each and in
default of payment of such fine to undergo further
R.I. for a period of one year. These four convicts
were sentenced further to undergo R.I. for a period of
five years for the offence punishable under Section
366 of the I.P.C and to pay a fine of Rs. 1,000/-
each and in default of payment of fine to further
undergo R.I. for six months. Two other accused were
convicted solely under Section 366 of the IPC, and
being ladies, leniency was shown and they were awarded
a sentence of three years R.I. and a fine of Rs.
1000/- each, in default whereof, to undergo R.I. for
six months each. The remaining two accused, Sandeep
and Dheeraj were convicted under Section 366 of the
IPC as well and the Trial Court sentenced them each to
5 years R.I., and a fine of Rs. 1000/- in default of
payment of which a further period of 6 months R.I.
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
3
would come into effect.
3. Feeling aggrieved by the judgment and order of
conviction recorded by Additional Sessions Judge,
Kurukshetra in Sessions Case No.52 of 1994 decided on
24.04.1996, Criminal Appeal No. 324-SB of 1996 (filed
by two female accused) and Criminal Appeal No. 338-SB
of 1996 was filed by remaining six convicted accused
in the High Court of Punjab and Haryana at Chandigarh.
Since both the appeals arose out of the same judgment,
they were heard analogously and were disposed off by a
common impugned judgment on 27.03.2009.
4. Learned Single Judge after going through the records
and appreciating the evidence available, partly
allowed Criminal Appeal 338-SB of 1996, qua Vijay Dua
and Krishan Kumar Takkar, and acquitted them of all
the charges levelled against them. They were
accordingly directed to be set at liberty. Thus out of
the initial eight, only the remaining six accused were
found to have committed offences under Section 366
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
4
and, in addition, the Appellant and Krishan @ Kaka
were also found to have committed offences under
Section 376 (2) (g) of the IPC, by the High Court.
5. The present appeal has been filed by Krishan Kumar
Malik only, one of the accused. We were given to
understand that on account of paucity of funds and
various other reasons, other convicted accused have not
preferred any appeal. However on enquiries being made
from the office, it came to our notice that both the
Special Leave Petition as well as the Review Petition
filed by one of the two female accused Hardevi were
dismissed by this Court. Thus, in the present appeal, we
are only required to consider whether there existed
sufficient, cogent, valid, reliable and trustworthy
evidence to hold the Appellant guilty of the aforesaid
offences. To come to the said conclusion, it is
necessary to deal with the bare facts of the
prosecution.
6. Thumbnail sketch of instant case is as follows:
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
5
Prosecutrix, PW-9, was a resident of Saraswati Road,
Pehowa and was said to be aged about 17 years at the
time of the commission of the said offence by the
th
accused. She had passed her 10 class. Her father had
expired few years prior to the date of the incident.
Prosecutrix has two younger sisters by the names,
Sangeeta and Ritu. Ritu was said to be aged 8 years at
the time of the incident. She alongwith her mother,
Narayani Devi, and sister, Sangeeta, was running a
small book stall from their house. As she was having
vacation in her school, she alongwith her mother and
sisters, after closing the book shop, came to Darra
Khera in Thanesar to meet her maternal aunt (mausi),
about 15 days before the incident. On the date of
incident, they were staying with their mausi.
7. On 23.06.1994, at about 1.00 p.m., prosecutirx went
with Ritu, her Sister to Sector 13, Kurukshetra to
meet her aunt Bimla, wife of Des Raj. While they were
talking to each other at about 2.00 p.m., accused
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
6
Hardevi (Bua), her daughter Heena, Heena's husband
Sonu and Heena's brother Dheeraj accompanied by six
boys, whose names were not known to the prosecutrix,
came to the house of her aunt, Bimla. Thereafter, they
forcibly lifted prosecutrix and put her in a blue
Maruti Van. Even though, lot of hue and cry was raised
by her as well as by her aunt, her aunt's husband,
neighbours and others but no one came forward to help
her. She was then taken to a vacant Kothi near a
bridge. After reaching the said Kothi, she was taken
to a separate room, and was subjected to alleged
forcible sexual intercourse by a hefty man who was
being called as Kaka and by another man, who was gitta
(short statured), having a beard. They committed the
alleged crime after removing her clothes. There were
Six more persons sitting in the said room, while two
of them committed rape on her one after the other as
stated above. Remaining six were also allegedly
fondling with her body parts. Some of them inserted
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
7
finger in her anus and some of them gave tooth bite on
her cheek. The family of her so called Bua and others
were sitting in the adjoining room where the incident
had taken place.
8. Thereafter, all of them took her forcibly in the same
Maruti Van to Radaur to the in law's house of her Bua,
Hardevi. All the six boys left her there. Thereafter,
her Bua after cutting prosecutrix's hair gave her a
beating with sandals. As soon as she got an
opportunity, she escaped from the said house and
boarded the bus by which she reached Kurukshetra. At
Kurukshetra she met her mother Narayani and sister
Sangeeta. She then narrated the whole incident to them
after which they went to the Police Station to lodge
an FIR. FIR was recorded at Police Station, Manesar on
24.06.1994 at 12.30 a.m. In the said FIR, the same
story was mentioned by the prosecutrix stating that
ten persons had participated in the commission of the
said offence. But the name of the Appellant was not
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
8
mentioned and instead he was described as Gitta (short
statured) with a beard.
9. On the strength of the said FIR, investigation
machinery was set into motion and prosecutrix was sent
for medical examination. On 24.06.1994, at 3.30 a.m.
Prosecutrix was examined by P.W-6, Dr. Sushma Saini,
Medical Officer, LNJP Hospital at Kurukshetra. Her
medical report and evidence would be discussed at a
later stage. Statement of prosecutrix under Section
164 of the Criminal Procedure Code, (hereinafter shall
be referred to as 'Cr.PC') was recorded by Shri
st
Jagdeep Jain, RCS, Judicial Magistrate, 1 Class,
Kurukshetra on 27.06.1994. Thereafter on 28.06.1994
her further statement was recorded under Section 161
of Cr.PC. A perusal of both the aforesaid statements
clearly indicates that she has given the name of the
present Appellant Krishan Kumar Malik as the
perpetrator, describing him as short statured person.
10. The FIR lodged by prosecutrix was also sent to
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
9
local Magistrate on 24.06.1994 at 2.20 a.m. During the
course of investigation, all the accused were arrested.
After completion of investigation, the accused were put
on trial for commission of the said offence before
Additional Sessions Judge, Kurukshetra. They pleaded not
guilty and requested for a judicial trial.
11. In order to bring home the charges levelled against
the accused, the prosecution had examined 14 witnesses
on its behalf. Defence also examined 5 witnesses on
their behalf. On appreciation of evidence available on
record, the trial court convicted the Appellant and the
remaining 7 accused mentioned hereinabove and awarded
sentences to all of them.
12. Subsequently, as has been previously stated, in
appeals preferred by all the 8 accused, before the High
Court two of them namely Vijay Kumar and Krishan Kumar
Takkar were acquitted and conviction of remaining
accused was upheld. However, this appeal has been
preferred by only Krishan Kumar Malik.
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
10
13. We have accordingly heard Mr. Jaspal Singh, learned
Senior Advocate, ably assisted by Mr. Sanjeev Anand,
learned counsel for the Appellant and Mr. Roopansh
Purohit with Mr. Ramesh Kumar learned counsel for the
Respondent State and have perused the record.
14. The basic and foremost question that arises for
consideration in this appeal is whether the present
Appellant had committed the offence of abduction and
rape on the prosecutrix on 23.06.1994 or whether he has
been falsely implicated.
15. With intention to proceed further and complete the
journey to reach the destination, we would first like to
consider the evidence of prosecutrix threadbare. She was
examined as P.W.9. Admittedly she had not mentioned the
name of the Appellant in the FIR lodged by her promptly,
instead she described him as Gitta (Short statured) with
beard, even though she was aware of his name. No
explanation has been offered by her in this regard.
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
11
16. According to the prosecutrix, only two accused had
sexual intercourse with her and other four were sitting
in the room fondling with her body parts. It may be
pertinent to point out that the number of people who
were with the prosecutrix during the abduction and
subsequent rape, has not been conclusively ascertained.
This point has been explored in detail in the next
paragraph. This appears to be quite improbable as there
were admittedly other rooms, where they could have sat
so as to allow the Appellant to do the act in privacy.
It is not her case that due to shortage of time or
accomodation this method was adopted.
17. The Prosecutrix admitted in her cross examination
that she had come to know the names of all the accused
during the course of occurence, as they were taking each
other's names. If that be so, then why she did not name
the Appellant in the FIR is a million dollar question?
These ommissions speak volumes against her and her
credibility stands shaken. It is also to be noted that
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
12
initially she reported that there were in all 10 persons
but later on she deposed that there were only eight
persons and at some place she narrated that only 7
persons were there. When she had ample time to count the
number of persons then why this wavering in the number
of persons. These acts or omissions of Prosecutrix
cannot be said to be minor contradictions as these are
very relevant pieces of evidence. Because of such
contradictions, an agile and active court can
differentiate between genuine cases from the frivolous
and concocted ones. The role of courts in such cases is
to see, whether the evidence available before the court
is enough and cogent to prove the accused guilty.
18. From the record it is established that she was
member of a Musical Concert Party, which used to perform
at various functions. Her photographs and video
recording fully reflects it, yet she had the audacity to
deny this fact. It is also pertinent to mention, if she
had really met her mother Narayani and sister at the Bus
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
13
Stop in Kurukshetra then, why Narayani or her sister
Sangeeta was not examined by the Prosecution. Thus story
of meeting them at Kurukshetra Bus Stop is wholly
unreliable and it appears to be concocted.
19. Medical evidence shows that her Labia Majora and
Labia Minora were healthy and had no marks of injury.
Hymen had old healed tear and the same was not red hot
or tender and did not bleed on touching. Vagina admitted
two fingers easily. P.W.6 Dr. Sushma Saini further
opined in her cross-examination that she might be
habitual to sexual intercourse prior to 23.06.1994. Her
Medico Legal Report and medical evidence further reveal
that she had not received any significant injuries on
other parts of her body and injuries on her private
parts were much less as mentioned by her in the FIR,
except for the cheek bite.
20. Admittedly, she had travelled certain distance in
the Maruti Van after her alleged abduction but she did
not raise any alarm for help. This shows her conduct and
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
14
behaviour during the whole process and render her
evidence shaky and untrustworthy.
21. The statement of the prosecutrix that in all 11
persons were there in the Maruti Van renders it further
doubtful as it would be extremely difficult for 11
persons to be accommodated in the Maruti Van, the
seating capacity of which is only 5.
22. During the course of investigation, the prosecutrix
was taken to the area, to point out the Kothi, where she
was said to have been subjected to rape, but she failed
to identify the said kothi. It may be recalled that she
was alleged to have been abducted during broad day
light, thus her failure to identify the kothi, fully
belies her case.
23. These are some of the salient features of the lop
sided story of the prosecutrix, more so, when it has not
been corroborated by any other evidence. On the account
of various serious contradictions in the statement of
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
15
prosecutrix and her actions, it could be safely
concluded that she was certainly not telling a gospel
truth.
24. Needless to say the solitary evidence of the
prosecutrix to bring home the charge of abduction and
commission of rape by the Appellant does not inspire
confidence and is not of sterling quality. In our
opinion, it is neither prudent nor safe to hold the
Appellant guilty of commission of the said offence. We
hold so, on account of many other circumstances, which
are against the prosecution, narrated hereinbelow:
25. Admittedly, no identification parade was conducted
to identify the Appellant as the description given by
prosecutrix about the details did not match with his
appearance. All through, she has been describing the
Appellant as gitta (short statured) man with beard,
whereas a statement before the Bench has been made by
learned counsel for Appellant, after verification from
the Appellant's wife, that he is 5' 6" tall. This fact
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
16
has been independently corroborated by the jailor's
report on this specific query. Even though a man having
height of 5' 6" cannot be said be tall but by no
stretch of imagination, he could be called a gitta
(short statured) man.
26. Admittedly she was already shown the Appellant
and other accused at the Police Station, after they
were arrested. Thus, her dock identification in Court
had become meaningless.
27. No spot maps were prepared either by the Naib
Tehsildar or by the Investigaing Officer to show the
size of the room. If the size of the room was so small
then it could not have been possible to accommodate 7
persons and also allowing the Appellant to commit the
offence of rape. If the size of the room could have
been verified, then the very genesis of commission of
the offence by the Appellant would fall flat. This could
have been possible to ascertain only if spot map had
been prepared. This was a lacuna on the part of the
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
17
investigating agency and prosecution, the benefit of
which must accrue to the Appellant.
28. PW-11, Sohan Singh, Inspector/ SHO had not gone
to see the spot at all. He has admitted this in the
following manner in his cross-examination:-
"Since I have never visited house No.
919/13, no site plan of that house was
prepared. Because the prosecutrix herself
has not stated the number of house. She was
even unable to identify this house. I did
not take the prosecutrix in house No. 919/13
inspite of the fact disclosed by accused on
27.6.1994."
This certainly reflects and shows the casual
manner in which the investigation was conducted.
29. PW-13, Sub Inspector Ramji Lal, has also admitted
this fact by making the following statements:
"However, Sneh Lata was not in a position to
locate the place of the incident.
Thereafter, I took her to Radaur. Even in
Radaur she was not able to locate the place
where she was criminally assaulted."
This further goes to show that not only the
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
18
prosecutrix but even the I.Os failed to locate the site
where offence of rape was said to have been committed.
30. According to the prosecutrix, she was abducted
from the house of Bimla Devi where, apart from the above
two ladies, husband of Bimla Devi, Des Raj and sons of
Des Raj and Bimla Devi were present. They had raised
hue and cry for help at the time of abduction. Many
neighbours had come out of their houses but surprisingly
enough prosecution has not examined either Bimla Devi or
her husband, their sons or any of their neighbours. No
plausible and valid reasons have been given for their
non-examination.
31. No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the
solitary evidence of prosecutrix is sufficient provided
the same inspires confidence and appears to be
absolutely trustworthy, unblemished and should be of
sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae,
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
19
have already been projected hereinabove, would go to
show that her evidence does not fall in that category
and cannot be relied upon to hold the Appellant guilty
of the said offences. Indeed there are several
significant variations in material facts in her S.164
statement, S.161 statement (Cr.P.C.), FIR and
deposition in Court.
32.Thus, it was necessary to get her evidence
corroborated independently, which they could have done
either by examination of Ritu, her sister or Bimla
Devi, who were present in the house at the time of her
alleged abduction. Record shows that Bimla Devi though
cited as a witness was not examined and later given up
by the public prosecutor on the ground that she has
been won over by the Appellant.
33.As per the FIR lodged by the prosecutrix, she first
met her mother Narayani and sister at the bus stop at
Kurukshetra but they have also not been examined, even
though their evidence would have been vital as
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
20
contemplated under Section 6 of the Indian Evidence
Act, 1872 (for short "The Act") as they would have
been Res Gestae witnesses. The purpose of
incorporating Section 6 in the Act is to complete the
missing links in the chain of evidence of the solitary
witness. There is no dispute that she had given full
and vivid description of the sequence of events
leading to the commission of the alleged offences by
the Appellant and others upon her. In that narrative,
it is amply clear that Bimla Devi and Ritu were stated
to be at the scene of alleged abduction. Even though
Bimla Devi may have later turned hostile, Ritu could
still have been examined, or at the very least, her
statement recorded. Likewise, her mother could have
been similarly examined regarding the chain of events
after the prosecutrix had arrived back at Kurukshetra.
Thus, they would have been the best person to lend
support to the prosecution story invoking Section 6 of
the Act.
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
21
34. We shall now deal with Section 6 of the Act,
wich reads as under:
"6. Relevancy of facts forming part of
same transaction - Facts which, though not
in issue, are so connected with a fact in
issue as to form part of the same
transaction, are relevant, whether they
occurred at the same time and place or at
different times and places.
Black's Law Dictionary defines Res Gestae as follows:
(Latin: "things done") The events at issue,
or other events contemporaneous with them
In evidence law, words and statements about
the res gestae are usually admissible under
a hearsay exception (such as present sense
impression or excited utterance).
The said evidence thus becomes relevant and
admissible as res gestae under Section 6 of the Act.
35. Section 6 of the Act has an exception to the general
rule where-under, hearsay evidence becomes admissible.
But as for bringing such hearsay evidence within the
ambit of Section 6, what is required to be established
is that it must be almost contemporaneous with the acts
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
22
and there could not be an interval which would allow
fabrication. In other words, the statements said to be
admitted as forming part of res gestae must have been
made contemporaneously with the act or immediately
thereafter.
36. Admittedly, she had met her mother Narayani and
sister soon after the occurrence, thus, they could have
been the best res gestae witnesses, still the
prosecution did not think it proper to get their
statements recorded. This shows the negligent and casual
manner in which prosecution had conducted the
investigation then the trial. This lacunae has not been
explained by the prosecution. The prosecution has not
tried to complete this mssing link so as to prove it,
beyond shadow of doubt, that it was Appellant who had
committed the said offences.
37. Learned Single Judge of the High Court, on the same
set of evidence has acquitted two accused, without
assigning any cogent, valid or specific reasons for it
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
23
whereas on the same very set of evidence, the Appellant
has been found guilty. Why the same benefit could not
have been bestowed to the Appellant has not been dealt
with specifically in the impugned judgment.
38.Prosecution also adopted a peculiar mode in the case
as the first statement of prosecutrix was recorded
under Section 164 of the Cr.P.C. on 27.06.1994 before
Judicial Magistrate, First Class, Kurukshetra. Only
thereafter on 28.06.2004, her further statement under
Section 161 of the Cr.P.C. was recorded.
39. In fact, the procedure should have been otherwise.
This further shows that right from the beginning the
prosecution was doubtful on the trustworthiness of the
prosecutrix herself. Precisely that was the reason that
she was first bound down by her statement under Section
164 of the Cr.P.C.
40. The Appellant was also examined by the doctor, who
had found him capable of performing sexual intercourse.
In the undergarments of the prosecutrix, male semen were
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
24
found but these were not sent for analysis in the
forensic laboratories which could have conclusively
proved, beyond any shadow of doubt with regard to the
commission of offence by the Appellant. This lacuna on
the part of the prosecution proves to be fatal and goes
in favour of the Appellant.
41. It is pertinent to mention here that Appellant is a
physically handicapped person to the extent of 55% as
per Doctor's Report, and this fact is not controverted
by the prosecution. This much of handicap of any person
would be easily noticeable, which Appellant failed to
mention at all. In fact, this would have been much
better identification of the Appellant, which the
prosecutrix did not mention at all.
42. On account of aforesaid shortcomings, irregularities
and lacuna on the part of the prosecution, in our
considered opinion, it will not be safe to convict the
Appellant.
43. With regard to the matching of the semen, we find it
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
25
nd
from Taylor's 2 Edn. (1965) Principles and Practice of
Medical Jurisprudence as under:-
"Spermatozoa may retain vitality (or free
motion) in the body of a woman for a long
period, and movement should always be looked
for in wet specimens. The actual time that
spermatozoa may remain alive after
ejaculation cannot be precisely defined, but
is usually a matter of hours. Seymour
claimed to have seen movement in a fluid as
much as 5 days old. The detection of dead
spermatozoa in stains may be made at long
periods after emission, when the fluid has
been allowed to dry. Sharpe found
identifiable spermatozoa often after 12
months and once after a period of 5 years.
Non-motile spermatozoa were found in the
vagina after a lapse of time which must have
been 3 and could have been 4 months."
44. Had such a procedure been adopted by the
prosecution, then it would have been a foolproof case
for it and against the Appellant.
45. Now, after the incorporation of Section 53 (A) in
the Criminal Procedure Code, w.e.f. 23.06.2006,
brought to our notice by learned counsel for the
Respondent-State, it has become necessary for the
prosecution to go in for DNA test in such type of
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
26
cases, facilitating the prosecution to prove its case
against the accused. Prior to 2006, even without the
aforesaid specific provision in the Cr.P.C.
prosecution could have still resorted to this
procedure of getting the DNA test or analysis and
matching of semen of the Appellant with that found on
the undergarments of the prosecutrix to make it a
fool proof case, but they did not do so, thus they
must face the consequences.
46. We have also gone through the orders of dismissal
pased by this Court in Crl.M.P. No. 9646 on 15.06.2009
as also of the Review Petition dated 05.11.2009 filed
by Smt. Hardevi. Admittedly, the said orders passed in
the SLP and Review Petition by this Court did not assign
any reasons for the dismissal, thus it would not be
proper and safe for us to place reliance thereon.
47. Thus, looking to the matter from all angles, we are
of the considered opinion that the conviction of the
Appellant cannot be upheld.
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
27
48.Thus, appeal is hereby allowed. Judgment and order of
conviction as recorded by the trial court and
confirmed by learned Single Judge of the High Court
qua the appellant are hereby set aside and quashed.
The Appellant is acquitted of all the charges.
49. He be set at liberty forthwith if not required in any
other criminal case.
......................J.
[DALVEER BHANDARI]
......................J.
[DEEPAK VERMA]
New Delhi
July 4, 2011
Crl. A. @S.L.P. (Crl.) No.8021 of 2009
28
lacunae
