"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.

 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.


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                                               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


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  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


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                                        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


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                                                  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

whether any of the ingredients under Section 406, 420 or 506 (1) of the IPC have been made out to enable the Court to take cognizance thereof against the appellant or not. Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the appellant so as to extend the benefit of Appellant's Channel "GOD TV" to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of Rs. 10 lacs on behalf of the Appellant's Company as the fee to be paid to Siti cable by Appellant for telecast of channel "God TV" in Ahmedabad. Further grievance of the Complainant was that despite the telecast of "GOD TV", the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainant's FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be

Crl. A. @ S.L.P. (Crl.) No.2409 of 2007    

                                                   1



                                                                        REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                        CRIMINAL APPELLATE JURISDICTION



                       CRIMINAL APPEAL NO.      OF 2011

             [Arising out of S.L.P. (Crl.) No.2409 of 2007]





        Joseph Salvaraj A.                                        ....Appellant


                                          Versus


        State of Gujarat & Ors.                                   ...Respondents


       


                                    J U D G M E N T


        Deepak Verma, J.


       


        1.    Leave granted.




        2.       Respondent   No.   4   -   complainant,   Living   Water



        Finney, lodged an FIR on 05.09.2006 at 22.15 hrs with



        Odhav   Police   Station,   Ahmedabad   City,   complaining



        therein   that   the   Appellant   has   committed   offences



        under   Section   406,   420   and   506(1)     of   the   Indian



        Penal   Code   (hereinafter   shall   be   referred   to   as



        `IPC').




        3.     Respondent   No.4   was   working   as   Administrative



        Officer   in   "Amaaru   Family   Education   Trust"   at



        Ahmedabad   and   claimed   that   he   has   been   residing


Crl. A. @ S.L.P. (Crl.) No.2409 of 2007    

                                                   2



        there,   leading   life   peacefully.   He   also   stated   that



        Shri   Dharmendra   P.   Rami   @   Laldbhai   was   running



        business   of   Siti   Cable   in   Bapi   Nagar   area   at



        Ahmedabad,   was   known   to   him   for   many   years   and   both



        of them enjoyed good relations with each other.




        4. Sometime in the year 2005, complainant had gone to



            Hyderabad   at   his   wife's   place   where   he   had   the



            occasion   to   watch   "God   TV"   which   influenced   him



            deeply   and   profoundly   touching   his   holy   spirit.



            He   wanted   to   share   his   experience   with   the



            Christian   community   of   Ahmedabad   so   that   they   may



            also  be blessed  through this  religious channel.  On



            his   return   to   Ahmedabad,   he   approached   cable



            operator     Mr.   Lalabhai,   owner   of   Siti   Cable   as



            mentioned   above     and   requested   him   to   have   this



            channel also in the bouquet  of channels offered by



            him.   He   also   contacted   the   Appellant's   Company



            directly,   requesting   it   to   allow   broadcasting   of



            "God   TV"   in     certain   areas   of   Ahmedabad   through



            Siti Cables, Ahmedabad.


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                                                   3



        5. Eventually,   with   the   aid   and   enterprise   of   Mr.



              Lalabhai,   they   were   able   to   commence   broadcasting



              of "GOD TV" in the eastern zone of Ahmedabad.  




        6.   Initially,     Mr.   Lalabhai   quoted   Rs.   30   lacs   for



        persuading   all   the   three   operators   to   commence     the



        telecast   of   "GOD   TV"   in   their   respective   areas   in



        Ahmedabad   but   the   same   was   settled   for   Rs.   10   lacs.



        Thus,   according   to     the   complainant,   Mr.   Lalabhai



        (and   2   other   cable   operators)   had   agreed   to



        broadcast,   religious   channel   "God   TV"   at   Ahmedabad,



        after the Appellant had agreed to pay a sum of Rs. 10



        lacs to Mr. Lalabhai.




        7.      However,   it   appears   that   there   was   no   Agreement



        in   writing   executed   and   entered   into   between   Mr.



        Lalabhai   and   the   Appellant.     Furthermore,   there   has



        not been any Agreement between complainant and either



        of   the   aforesaid   two   parties.     According   to   him,   on



        his own, he had acted only as a mediator.




        8.      From   time   to   time,   the   Complainant   kept



        reminding   the   appellant   about   payment   of   the   amount


Crl. A. @ S.L.P. (Crl.) No.2409 of 2007    

                                                   4



        of Rs. 10 lacs to Mr. Lalabhai.  But according to the



        Complainant,   the   appellant   deliberately   avoided   his



        communications. In the meanwhile, the cable operators



        who   had   started   telecasting   "God   TV"   were   also



        pressurizing the Complainant for the said amount.




        9.     As   mentioned   hereinabove   for   about   five   months,



        they enjoyed watching "God TV" without any disruption



        but   thereafter   the     reception   signals   of   the   said



        channel   developed   some   technical   snag.     Thus,   from



        October   2005,   on   account   of   poor   quality   of



        receivers,   the   reception   was   also   not   clear   and   was



        blurred.   He   once   again   contacted   the   Appellant   who



        agreed   to   send   receiver   to   the   Complainant.     After



        having   received   the   said   receiver,   it   was   delivered



        to Mr. Lalabhai but as per the Complainant's version,



        by   that   time   the   amount   of   Rs.   10   lacs   as   agreed   to



        between   Mr.   Lalabhai   and   the   present   Appellant   was



        still   not   paid.   Having   failed   to   elicit   a   verbal



        response,   the   Complainant   thereafter   wrote   a   series



        of   letters   and   sent   e-mails   to   the   Appellant,


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                                                   5



        ultimately   culminating   in   a   notice   dated   21.06.2006,



        to which the Appellant replied on 18.07.2006, denying



        all   accusations   and   liabilities.   Then   the   problem



        started   and   Respondent   No.   4   lodged   the   FIR   against



        the Appellant as mentioned hereinabove.




        10.After completion of the investigation, as per the



            FIR   lodged   by   the   Complainant   on   05.09.2006,   the



            Appellant   was   arrested   at   Chennai   for   commission



            of   the   said   offences   on   17.11.2006.   He   was   thus



            constrained   to   file   an   application   under   Section



            437   of   the   Code   of   Criminal   Procedure,   1973



            (hereinafter   shall   be   referred   to   as   the   `Code')



            for   grant   of   bail   to   him.   The   same   was   granted   to



            him on the conditions mentioned in the order dated



            22.11.2006.




        11.The Appellant, thereafter, was constrained to file



            the   petition   under   Section   482   of   the   Code   in   the



            High   Court   of   Gujarat   at   Ahmedabad,   with   a   prayer



            for quashing of the FIR bearing C.R. No. I-371/2006



            registered   with   Odhav   Police   Station   and     to   stay


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            further   investigation   in   the   case.   The   said



            application   came   to   be   considered   before   the



            learned   Single   Judge   on   11.1.2007.     By   that   time,



            charge sheet was already filed before the Competent



            Criminal Court.  Thus, learned Single Judge, was of



            the   opinion   that   it   was   not   a   fit   case   to   be



            entertained   and   refused   to   hear   the   petition   on



            merits, even though the appellant was given liberty



            to file an application for his discharge before the



            Trial   Court.       It   may   be   noted   that   even   in   its



            impugned   order   the   learned   Single   Judge   has



            emphasized   that   he   had   not   considered   the   case   on



            merits. Thus the Appellant's petition was dismissed



            and   interim   order   granted   in          his   favour   was



            vacated.




        12.    Now   the   Order   dated   11.01.2007   passed   by   the



        learned Single Judge of the High Court in Appellant's



        Criminal   Application   No.   1977   of   2006,   is   subject



        matter of challenge in this Appeal.




        13.    We have accordingly heard Mr. Huzefa Ahmedi with


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        Mr.   Shamik   Sanjanwala   for   the   Appellants   Ms.   Jesel,



        for respondent No 1,2 and   3 and Ms. Aparna Bhat for



        respondent   No.4   -   Complainant   at   length.     Perused



        the record.




        14.    Learned   counsel   for   the   Appellant   contended   that



        even   after   going   through   the   FIR,   no   case   under



        Section   406   or   420   of   the   Penal   Code   was   made   out.



        The FIR was filed by a person who is indisputably not



        a contracting party and at best by his own admission,



        had   acted   only   as   a   mediator,   and   had   no   cause   of



        action   to   file   the   complaint.       He   has   failed   to



        produce any evidence worth the name in support of his



        allegation   and   legally   acceptable   that   the   contract



        was   concluded,   where   under   the   Appellant   was   obliged



        to pay a sum of Rs. 10 lacs to Mr. Lalabhai.




        15.    The allegations in the F.I.R. clearly discloses a



        civil   dispute   between   the   parties   and   the   FIR   seems



        to   have   been   filed   only   with   an   intention   to   harass



        and   humiliate   the   Appellant.     This   was   a   pre-emptive



        move by the Complainant.


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        16.    A   summary   Civil   Suit   under   Order   37   Rule   II   of



        Code   of   Civil   Procedure   (hereinafter   to   be   referred



        as   'CPC')   has   already   been   filed   by   Dharmendra   P.



        Rami   @   Laldbhai   against   the   Appellant   and   the



        Respondent   No.4,   Complainant   herein,   before   the   City



        Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs



        together with interest thereon.   In the said suit an



        unconditional   leave   to   defend   has   already   been



        granted   to   the   Appellant   and   the   matter   is   still



        pending.   In   the   light   of   the   aforesaid   submissions,



        it was contended that it is a fit case where the FIR



        deserves   to   be   quashed   otherwise   the   same   would



        amount to abuse of the process of law.




        17.    On   the   other   hand,   the   learned   counsel   for



        Respondents   especially   Respondent   No.   4,   contended



        that   intention   to   cheat   the   complainant   was   clearly



        made          out         by         the          action        of        the



        Appellant,  ultimately resulting in lodging of F.I.R.



        against  Appellant and  Respondent No.4  both.    Learned



        Single   Judge   was   fully   justified   in   rejecting   the


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        Appellant's   Petition   as   it   was   not   a   fit   case   to



        invoke  the jurisdiction  conferred on  the court  under



        Section 482 of the CrPC. Thus, a prayer was made that



        no case for interference was made out and the Appeal



        be dismissed.




        18.     In the light of the rival contentions we have to



        examine whether cognizance of the offences could have



        been   taken   by   the   Competent   Criminal   Court   in   the



        light of the averments made by the complainant in the



        FIR.




        19.     Even   though   the   learned   counsel   appearing     for



        contesting   parties     have   cited   numerous   authorities



        in   support   of   their   respective   contentions,   but   in



        view   of   the   well   settled   legal   position   of   law,   by



        long   catena   of   cases   of   this   Court,   on   this   and



        related   points,   we   are   not   dealing   with   each   one   of



        them   separately   and   independently.             However,   the



        ratio   and   gist   of   these   would   be   reflected   in   our



        order.




        20.     In   the   instant   case,   we   have   to   first   examine


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        whether any of the ingredients under Section 406, 420



        or   506   (1)   of   the   IPC   have   been   made   out   to   enable



        the   Court   to   take   cognizance   thereof   against   the



        appellant or not.   Bare perusal of the FIR lodged by



        the   complainant,   would   indicate   that   he   had   got   in



        touch with the appellant so as to extend the benefit



        of Appellant's Channel "GOD TV" to his other brethren



        residing at Ahmedabad.  For the said purposes, he had



        met the owner of Siti Cable, Bapi Nagar in Ahmedabad



        and negotiated a settlement for a sum  of Rs. 10 lacs



        on behalf of the Appellant's Company as the fee to be



        paid   to   Siti   cable   by   Appellant   for   telecast   of



        channel   "God   TV"   in   Ahmedabad.   Further   grievance   of



        the Complainant was that despite the telecast of "GOD



        TV",  the Appellant, as promised, failed to pay a sum



        of Rs. 10 lacs to the owners of Siti cables.  This is



        what   has   been   mentioned   in   nutshell   in   the



        complainant's   FIR.   We   have   grave   doubt,   in   our   mind



        whether   on   such   averments   and   allegations,   even   a



        prima   facie   case   of   the   aforesaid   offences   could   be


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        made out against the present appellant.




        21.    Criminal   breach   of   trust   is   defined   under



        Section   405   of   the   IPC   and   406   thereof   deals   with



        punishment   to   be   awarded   to   the   accused,   if   found



        guilty   for   commission   of   the   said   offence   i.e.   with



        imprisonment       for   a   term   which   may   extend   to   three



        years, or with fine, or with both.




        22.    Section   420   of   the   IPC   deals   with   cheating   and



        dishonestly   inducing   delivery   of   property.   Cheating



        has   been   defined   under   Section   415   of   the   IPC   to



        constitute   an   offence.   Under   the   aforesaid   section,



        it   is   inbuilt   that   there   has   to   be   a   dishonest



        intention  from  the  very  beginning,  which  is  sine  qua



        non  to  hold  the  accused  guilty  for  commission  of  the



        said offence. Categorical and microscopic examination



        of   the   FIR   certainly   does   not   reflect   any   such



        dishonest   intention  ab   initio  on   the   part   of   the



        appellant.




        23.    Section  506 of the IPC deals with punishment for



        criminal   intimidation.   Criminal   intimidation,   insult


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        and   annoyance   have   been   defined     in   Section   503   of



        the   IPC   but   the   FIR   lodged   by   complainant   does   not



        show   or  reflect   that  any   such  threat   to  cause   injury



        to   person   or   of   property     was   ever   given   by   the



        Appellant to the Complainant.




        24.    Thus,   from   the   general   conspectus   of   the   various



        sections   under   which   the   Appellant   is   being   charged



        and  is  to  be  prosecuted  would  show  that  the  same  are



        not   made   out   even  prima   facie  from   the   Complainant's



        FIR.     Even   if   the   charge   sheet   had   been   filed,   the



        learned   Single   Judge   could   have   still   examined



        whether   the   offences   alleged   to   have   been   committed



        by   the   Appellant   were  prima   facie  made   out   from   the



        complainant's   FIR,   charge   sheet,   documents   etc.   or



        not.




        25.    In   our   opinion,   the   matter   appears   to   be   purely



        civil   in   nature.   There   appears   to   be   no   cheating   or



        a   dishonest   inducement   for   the   delivery   of   property



        or   breach   of   trust   by   the   Appellant.     The   present



        FIR   is   an   abuse   of   process   of   law.   The   purely   civil


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        dispute,   is   sought   to   be   given   a   colour   of   a



        criminal   offence   to   wreak   vengeance   against   the



        Appellant.   It   does   not   meet   the   strict   standard   of



        proof required to sustain a criminal accusation.




        26.    In such type of cases, it is necessary to draw a



        distinction   between   civil   wrong   and   criminal   wrong



        as   has   been   succinctly   held   by   this   Court   in



        Devendra   Vs.   State   of   U.P.,   2009   (7)   SCC   495,



        relevant part thereof is reproduced hereinbelow:




                   "A   distinction   must   be   made   between   a

                   civil   wrong   and   a   criminal   wrong.     When

                   dispute   between   the   parties   constitute

                   only   a   civil   wrong   and   not   a   criminal

                   wrong,   the   courts   would   not   permit   a

                   person   to   be   harassed   although   no   case

                   for   taking   cognizance   of   the   offence   has

                   been made out."




      27.    In fact, all these questions have been elaborately



      discussed   by   this   Court   in   the   most   oft   quoted



      judgment   reported   in   1992   (Suppl)   1   SCC   335   State   of



      Haryana   Vs.   Bhajan   Lal,   where   seven   cardinal



      principles   have   been   carved   out   before   cognizance   of



      offences,   said   to   have   been   committed,   by   the   accused


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      is taken. The case in hand unfortunately does not fall



      in that category where cognizance of the offence could



      have   been   taken   by   the   court,   at   least   after   having



      gone   through   the   F.I.R.,   which   discloses   only   a   civil



      dispute.



      28.     The Appellant cannot be allowed to go through the



      rigmarole of a criminal prosecution for long number of



      years,   even   when   admittedly   a   civil   suit   has   already



      been   filed   against   the   Appellant   and   Complainant-



      Respondent No. 4, and is still subjudice. In the said



      suit, the Appellant is at liberty to contest the same



      on grounds available to him in accordance with law as



      per   the   leave   granted   by   Trial   Court.   It   may   also   be



      pertinent to mention here that the complainant has not



      been   able   to   show   that   at   any   material   point   of   time



      there   was   any   contract,   much   less   any   privity   of



      contract between the Appellant and Respondent No. 4 -



      the Complainant. There was no cause of action to even



      lodge   an   FIR   against   the   Appellant   as   neither   the



      Complainant had to receive the money nor he was in any


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      way   instrumental   to   telecast   "GOD   TV"   in   the   central



      areas   of   Ahmedabad.   He   appears   to   be   totally   a



      stranger   to   the   same.   Appellant's   prosecution   would



      only   lead   to   his   harassment   and   humiliation,   which



      cannot  be  permitted  in  accordance  with  the  principles



      of law.



      29.      Thus,   looking   to   the   matter   from   all   angles,   we



      are   of   the   considered   opinion   that   the   prosecution   of



      the   Appellant   for   commission   of   the   alleged   offences



      would be clear abuse of the process of law.



      30.   The   FIR   under   the   circumstances   deserves   to   be



      quashed at the threshold.                     We accordingly do so. The



      Appeal   is,   therefore,   allowed.   The   order   of   learned



      Single   Judge   is   set   aside.   The   FIR   dated   05.09.2006



      lodged   by   Respondent   No.   4   -   Complainant   with   Odhav



      Police   Station,   Ahmedabad   stands   quashed   and   all



      criminal   proceedings   emanating   therefrom   also   stand



      quashed. The parties to bear their respective costs.





                                                   ......................J.

                                                   [DALVEER BHANDARI]


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                                                   ......................J.

                                                   [DEEPAK VERMA]

      New Delhi

      July 4, 2011

"The assessment of damages to compensate the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g. the life expectancy of the deceased and the dependents, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependents during that period, the chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the 5 chances that the deceased might have got better employment or income or might have lost his employment or income together etc."

                                                         REPORTABLE


                IN THE SUPREME COURT OF INDIA

                  CIVIL APPELLATE JURISDICTION




                 CIVIL APPEAL NO.  4921 OF 2011

             [Arising out of SLP (C) No. 21418 of 2010]





National Insurance Co. Ltd.                                    .... Appellant





                                  Versus





Shyam Singh and Ors.                                      .... Respondents





                                         JUDGMENT





Dr. MUKUNDAKAM SHARMA, J.


1. Leave granted.




2. This appeal is directed against the judgment and order dated



   15.03.2010 passed by the High Court of Madhya Pradesh at



   Jabalpur in Miscellaneous Appeal No. 4867 of 2009, whereby



   the High Court had partially allowed the appeal filed by the



   Respondent   No.   3   and   4   herein,   against   the   award   dated


  28.08.2009 passed by the Second Additional Motor Accident



  Claims Tribunal, Satna, Madhya Pradesh and enhanced  the



  compensation awarded by the Tribunal.




3. The factual matrix of the case is that Respondent No. 3 and 4



  are   parents   of   one   Yogendra   Kumar   Pathak,   who   was   19



  years   of   age   and   on   01.11.2007   while   on   his   way   to   his



  village   Kor   Gaon,   he   alongwith   his   sister   were   travelling   in



  jeep   No.   MP   19-A   930.   The   said   jeep   wasbeing   driven   by



  Respondent   No.   1   and   met   with   an   accident   near   Dhal



  Factory   General   Road   due   to   rash   and   negligent   driving   by



  the Respondent No. 1which resulted in his death on the spot.



  FIR   was   lodged   at   Police   Station,   Civil   Lines,   Satna   against



  the driver under Sections 229 and 304-A of the Indian Penal



  Code.   His   dead   body   was   taken   to   his   village   from   the



  hospital   on   payment   of   Rs.   800/-   and     amount   of   Rs.



  25000/- was spent on cremation.




4.  It was stated in the claim petition that before his death, the



  deceased was a young man of robust health and was working



  as   mechanical   fitter   in   Priya   Engineering   Prism   Cement



  Factory   on  the  salary   of   Rs.   4500/-   per  month  and  in  total





                                      2


      was getting Rs. 6000/- a month inclusive of salary and over



      time   allowance   and   was   supporting   his   parents   financially.



      After his death, Respondents No. 3 and 4 have been rendered



      without any financial support and have been deprived of the



      association   and   pleasure   of   having   a   family   and   grand



      children in future.




5.    The M.A.C.T., Satna, came to a finding that the deceased was


      earning Rs. 3000/- per month and deducted 50 % therefrom



      towards   personal   expenses,   as   he   was   a   bachelor.



      Considering   the   age   of   the   parents   which   was   56   and   55



      years,   applied   the   Multiplier   of   9,   and   awarded   a   total



      compensation of Rs. 1,72,000/- (Rs. 1,62,000/- towards the



      loss   of   dependency   +   Rs.   10,000/-   towards   conventional



      heads)   along   with   6  %  interest   per   annum   from   the   date   of



      claim petition. Being aggrieved, the Respondent No. 3 and 4



      preferred  miscellaneous   appeal  No.  4867  of 2009  before  the



      High   Court   for   enhancement   of   amount   of   compensation



      stating that the income of the deceased was Rs. 4500/- and



      not   Rs.   3000/-   as   determined   by   the   Tribunal,   and   a



      multiplier of 16 instead of 9 was supposed to be applied. The





                                          3


      High Court relying on the judgment of this Court in the case



      of  Sarla   Verma   (Smt.)   and   Others   v.   Delhi   Transport


      Corporation and Another (2009) 6 SCC 121, enhanced the


      multiplier   to   18   instead   of   9   and   granted   expenses   to   the



      tune of Rs. 15000/- under conventional heads. Accordingly,



      the High Court enhanced the amount of compensation from



      Rs. 1,72,000/- to Rs. 3,39,000/-




6.    The   learned   counsel   appearing   for   the   appellant   submitted


      that   the   High   Court   had   failed   to   correctly   apply   the   ratio



      laid in the case of Sarla Verma case (supra.). It was further



      contended   that   this   Court   has   repeatedly   held   that   in   case



      where an unmarried young man dies, the average age of the



      parents will be taken for determining the multiplier and not



      the   age   of   the   deceased.   In   the   aforesaid   case,   it   has   been



      clearly   stated   that   for   the   age   group   of   56-60   years   the



      multiplier should be 8, as has been correctly applied by the



      Tribunal by taking the average age of the Respondents 3 and



      4 who are 55 and 56 years of age. It was further submitted



      that  assuming,  though  not  admitting,  even  if  the  age  of  the



      deceased   is   to   be   considered  for   determining   the   multiplier,





                                            4


      the   correct   multiplier   should   have   been   16   instead   of   18,



      which is applicable to the age group between 15 to 20 years.



       




7. On   the   other   hand,   the   learned   counsel   appearing   for   the



      Respondents No. 3 and 4 supported the impugned judgment



      and   submitted   that   the   High   Court   correctly   enhanced   the



      multiplier keeping in view the age of the deceased which was



      19 years.




8.    The   assessment   of   damages   and   compensation   takes   into


      account a number of imponderables. This has been held  by



      this   court   in   the   case   of  General   Manager,   Kerala   State


      Road   Transport   Corporation,   Trivandrum   v.   Mrs.


      Susamma Thomas and Ors. (AIR 1994 SC 1631) as: -




            "The assessment of damages  to  compensate  the

            dependents   is   beset   with   difficulties   because

            from   the   nature   of   things,   it   has   to   take   into

            account   many   imponderables,   e.g.   the   life

            expectancy of the deceased and the dependents,

            the   amount   that   the   deceased   would   have

            earned   during   the   remainder   of   his   life,   the

            amount   that   he   would   have   contributed   to   the

            dependents  during that  period, the  chances that

            the   deceased   may   not   have   lived   or   the

            dependents   may   not   live   up   to   the   estimated

            remaining   period   of   their   life   expectancy,   the





                                           5


            chances that the deceased might have got better

            employment   or   income   or   might   have   lost   his

            employment or income together etc."  





9.    This Court in the case of  Vijay Shankar Shinde and Ors.


      v. State of Maharashtra (2008) 2 SCC 670, after referring


      to   the   earlier   judgments  of   this   Court,   in   detail,   dealt   with



      the   law   with   regard   to   determination   of   the   multiplier   in   a



      similar situation as in the present case. The said findings of



      this Court are as under:  





            "6. We have given anxious consideration to these

            contentions and are of the opinion that the same

            are   devoid   of   any   merits.   Considering   the   law

            laid   down   in   New   India   Assurance   Co.   Ltd.   v.

            Charlie  AIR   2005   SC   2157,   it   is   clear   that   the

            choice   of   multiplier   is   determined   by   the   age   of

            the   deceased   or   claimants   whichever   is   higher.

            Admittedly,   the   age   of   the   father   was   55  years.

            The   question   of   mother's   age   never   cropped   up

            because that was  not the contention raised even

            before   the   Trial   Court   or   before   us.   Taking   the

            age   to   be   55   years,   in   our   opinion,   the   courts

            below   have   not   committed   any   illegality   in

            applying the multiplier of 8 since the father was

            running 56th year of his life.


            7.   The   learned   Counsel   relying   on   the   2nd

            Schedule of the Act contended that the deceased

            being about 16 or 17 years of age, a multiplier of

            16   or   17   should   have   been   granted.   It   is

            undoubtedly true  that  Section  163A  was  brought

            on   the   Statute   book   to   shorten   the   period   of

            litigation.   The  burden   to   prove   the   negligence   or





                                           6


fault   on   the   part   of   driver   and   other   allied

burdens u/s 140 or 166 were really cumbersome

and time consuming. Therefore as a part of social

justice, a system was introduced via Section 163A

wherein such burden was avoided and thereby a

speedy   remedy   was   provided.   The   relief   u/s

163-A   has   been   held   not   to   be   additional   but

alternate.   The   Schedule   provided   has   been

threadbare discussed in various pronouncements

including   Deepal   Girishbhai   Soni   v.  United   India

Insurance   Co.   Ltd.     AIR   2004   SC   2107.   2nd

Schedule is to be used not only referring to age of

victim   but   also   other   factors   relevant   therefore.

Complicated questions of facts and law arising in

accident cases cannot be answered  all times  by

relying on mathematical equations. In fact in U.P.

State   Road   Transport   Corporation   v.             Trilok

Chandra  (1996)   4   SCC   362,   Ahmedi,   J.   (As   the

Chief   Justice   then   was)   has   pointed   out   the

shortcomings in the said  Schedule and  has held

that the Schedule can only be used as a guide. It

was   also   held   that   the   selection   of   multiplier

cannot   in   all   cases   be   solely   dependent   on   the

age  of the  deceased. If a young man  is killed in

the   accident   leaving   behind   aged   parents   who

may   not   survive   long   enough   to   match   with   a

high   multiplier   provided   by   the   2nd   Schedule,

then  the  Court has  to  offset such high multiplier

and   balance   the   same   with   the   short   life

expectancy   of   the   claimants.   That   precisely   has

happened   in   this   case.   Age   of   the   parents   was

held as a relevant factor in case of minor's death

in   recent  decision   in   Oriental   Insurance   Co.   Ltd.

v.  Syed Ibrahim and Ors.  AIR 2008 SC 103. In  our

considered   opinion,   the   Courts   below   rightly

struck the said balance."





                              7


10. In our view, the dictum laid down in Vijay Shankar Shinde



  (supra)  is   applicable   to   the   present   case   on   all   fours.


  Accordingly, we hold that the Tribunal had rightfully applied



  the multiplier of 8 by taking the average of the parents of the



  deceased who were 55 and 56 years.




11.    Thus, the present appeal is allowed to the aforesaid extent



and the award passed by the Tribunal is restored. No costs.





                                              ............................................J

                                                     [ Dr. Mukundakam Sharma ]





                                             ............................................J

                                                [ Anil R. Dave ]

New Delhi,

July 4, 2011.





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