BUT NOT BY ACCUSED - NO VALUE ON FACTS OF THE CASE = the deceased has been fired at by Samar Singh from his service revolver. = On a perusal of the evidence and the FSL report relating to the country-made pistol, Ext. F-1, seized from the accused, it is manifest that the fire arm country-made pistol .303 bore was designed to fire a standard .303 cartridge and that the pistol was in working order. Its test fire was also successfully conducted and the empty cartridge of .303 bore, Ext. C- 1, found in the chamber of the country-made pistol was the empty cartridge fired from the country made pistol.-Therefore, to say that no shot was fired from the country-made pistol is belied and the prosecution version that it was the country-made pistol which was fired by the accused that caused injuries to the deceased deserves acceptance. - From the post-mortem report, it is clear that the bullet injury was from front to back. It is not in dispute that the deceased and the accused were grappling. The version of the prosecution in that all of a sudden, the accused brought out his desi katta and fired from a close range. This has been clearly established by the evidence. Learned counsel would submit that while grappling the position changed and the bullet fired from the service revolver of Samar Singh hit the deceased. In our considered opinion, such a submission cannot be given any acceptance as the desi katta was seized from the accused and the weapon, as opined in the FSL report, is the desi katta and further there is no material to prove that gun shot was fired from the weapon of Samar Singh. Thus, from the aforesaid, it is clear as crystal that the shot was fired from the country-made pistol seized from the custody of the accused-appellant. Hence, the plea that there was a gun shot from the revolver of Samar Singh while the accused-appellant was grappling with the deceased being absolutely mercurial in nature is rejected. 14. In view of the aforesaid premised reasons, the appeals, being sans substance, stand dismissed.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40454
Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 562-563 OF 2010
Pramod Kumar ... Appellant
Versus
State (GNCT) of Delhi ...Respondent
J U D G M E N T
Dipak Misra, J.
On 19.3.1999, SI Prahlad Singh along Ct. Baljit Singh went
to Village Gittorni where Inspector Mohd. Iqbal, PW-16, had
reached along with his staff. After some time, ACP, Delhi
Cantt., arrived at the spot. On enquiry, they came to know that
one constable of P.S. Hauz Khas, namely, Maharaj Singh, having
suffered a gun shot injury, had been taken to the hospital. The
Head Constable Samar Singh narrated the occurrence to the
effect that he along with other officials had received
1Page 2
information about the presence of Pramod Kumar, a proclaimed
offender of PS Hauz Khas, was hiding in the house of Chander
Pal and about 4.30 p.m., they reached Village Gittorni and as
per the instruction of SI Jaswinder Singh, he and Ct. Maharaj
Singh went to the place to obtain information about the
presence of Pramod Kumar and SI Jaswinder Singh waited along
with the staff at a distance of 100 meters from the house of
Chander Pal. When he and Maharaj Singh reached near the
house of Chander Pal, accused Pramod Kumar was standing
outside the room. Maharaj Singh disclosed his identity to him
and asked him to surrender, but, Pramod Kumar, instead of
surrendering, took out a knife from his shirt pocket with his left
hand and tried to assault. However, immediately he was
caught hold of by Maharaj Singh from the rear and both of them
grappled with each other for some time. The Head Constable,
Samar Singh, tried to snatch the knife from the hands of
Pramod Kumar and ultimately he was successful in snatching
away the knife from his hands but, at that juncture, Pramod
Kumar took out a desi katta and fired at Maharaj Singh and the
bullet hit in the stomach area. Hearing the sound, the villagers
surrounded and assaulted Pramod Kumar. During that time, SI
2Page 3
Jaswinder Singh came to the spot along with his staff and
injured Maharaj Singh was taken to the hospital. Desi katta and
knife which were seized from the accused were given to the IO
by Samar Singh. As further revealed, accused Pramod Kumar
was apprehended and five cartridges were recovered and on
the basis of the statement of Samar Singh, an FIR was
registered under Section 307 of the Indian Penal Code (for short
“IPC”). When Maharaj Singh succumbed to his injuries, the
case was converted to one under Section 302 IPC. The bullet
that had hit the stomach of the deceased was kept in a sealed
cover and the same was sent to F.S.L. Malviya Nagar and
ultimately, on completion of the investigation, charge-sheet
was filed in the competent court which, in turn, committed the
matter to the Court of Session. Be it noted, after hearing the
accused, charges under Sections 186/332 and 302 IPC were
framed and separate charges under Sections 25 and 27 of the
Arms Act,1959 were also framed against the accused-appellant.
2. The accused pleaded not guilty and claimed to be tried.
3. The prosecution, in order to establish its case,
examined 19 witnesses and got number of documents
exhibited.
3Page 4
4. The accused, in his statement under Section 313 of the
Code of Criminal Procedure, 1973 (herein after CrPC),
denied the entire allegations and pleaded that he was
absolutely innocent. It was his further plea that one
person caught hold of him and pushed him and started
assaulting him. At that stage, he got up and grappled
with that person who twisted his hand. The other
person accompanying the first person gave him a kick
and took out some weapon and fired at him, but he
saved himself. The bullet hit the person who had
caught hold of him and receiving the bullet injury, he
fell down and later on, he learnt that he was Maharaj
Singh and the person who had fired was Samar Singh.
The neighbours, who had collected, started assaulting
Samar Singh. Thereafter, many other police officials
entered his room and beat him as a result of which his
right leg was severely fractured and the plaster
remained for eight months. That apart, 23 stitches
were put on his head due to the beatings given by the
police. He had become unconscious on the spot after
receiving injuries. When he regained consciousness, he
4Page 5
found himself in Safdarjung Hospital. It was his further
plea that to save the police official Samar Singh, the
investigating agency had falsely implicated him. He
had also taken the plea that they had got his signatures
on blank papers at the Police Station. Sanjay, who was
brought by the police, had witnessed the entire episode.
The police deliberately did not cite any one from the
public as witness as they gave beating to Samar Singh.
Chander Pal was not present at his house on that day as
he had gone out with his van. He came to know later
on that the house of Maharaj Singh was at a distance of
50 yards from the place of occurrence, i.e., house of
Chander Pal.
5. The defence, in order to substantiate its plea, examined
one witness, namely, Sanjay.
6. We have heard Dr. V.P. Appan, learned counsel for the
appellant and Mr. R. Nedumaran, learned counsel for
the respondent.
7. Two fundamental points that have been urged before us
are that apart from the police officials, no other
5Page 6
independent witness has been examined and that the
appellant was not responsible for causing injury on the
deceased. On the contrary, it was the Head Constable
Samar Singh who intended to fire at the accused when
the deceased and the accused were grappling, but the
bullet hit the deceased. Elaborating the said
contention, it is canvassed by the learned counsel that
to hide the atrocities of the police, the case has been
foisted, but the learned trial Judge as well as the High
Court failed to appreciate the same in proper
perspective which makes the judgments absolutely
faulted.
8. Per contra, the learned counsel for the respondent
would contend that the post mortem report and the
weapons seized would clearly show that the bullet was
not fired from the pistol of Samar Singh but from the
desi katta which was seized from the custody of the
accused. It is also contended that the plea taken under
Section 313 CrPC is fundamentally incredible and it only
shows a figment of fertile imagination of the accused as
such a situation could never have occurred.
6Page 7
9. To appreciate the aforesaid submissions, it is necessary
to reproduce the autopsy report brought on record and
proven by Dr. O.P. Murli, PW-3, which is as follows: -
“One lenear cresentric abrasion measuring 3 x 8
cms, 2 x 7 cms. and 1 x 3 cms with bruising in and
around.
Gun shot entry wound of 2.5 x 1 cms. Over front
of right side abdomen 5 cms. above the embilicus
1 cm from mid line, 21 cms. from right nipple and
45 cms above right sole. Margines were inerted
blackened and surrounding hairs showed singeing,
abdominal fact (omentum) protruded with effusion
of blood in and around underneath the tissues.
Omentum and small intestine were lacerated and
showing cavitation consequent upon the fire arm
injury with full of abdominal cavity blood bruising
was also also seen in other parts of intestine. Fire
arm exit wound of 1 x 1.5 cm. over the back side
of right side abdomen 6.5 cms. from midline 3
cms. from waist line 20 cms. From right back bone
anble margines everted and protruded wound
communicating with the entry and all intervention
structure were lacerated and injury effect. All
organs were pale. Rest was NAD.
Clothing examination : One shirt was having a tear
of 2.5 x 2.3 cms. soaked in block showing fire arm
effect and the bullet entry had also fractured one
button and half was present. The hole of the shirt
was 28 cms. from lower margine on right side.
The back part of the shirt shows corresponding to
the exit wound of size 1 x 7 cms on the right lower
part 18 cms from the margine. The direction of
wound was from front to back and slight above to
down.
The underneath banian showed tear of 1 x 7 cm
on the back front tear was cut in the casualty.
7Page 8
Blood soaked pants and underwear
Opinion :
Death in this case was due to haemorrhage shock
as result of gun shot injury which was sufficient to
cause death in the ordinary course of nature and
was fired from a close range showing powder and
heat effect.”
From the aforesaid report, it is quite clear that the death was
due to bullet injury and the direction of the wound was from
front to back and slight above to down. We shall dwell upon
this aspect when we deal with the said point.
10. We shall deal with the first contention first. In the plea
advanced under Section 313 CrPC, it has been stated by
the accused-appellant that as the public became angry
due to the conduct of Samar Singh, they assaulted him
and in order to save him, the investigating agency
chose not to cite any independent witness though many
witnesses were present who had seen the occurrence.
There is no denial of the fact that the occurrence had
taken place in the house of Chander Pal who has turned
hostile. However, from his testimony and other
evidence brought on record, it is evident that the
occurrence took place in his house. His turning hostile
8Page 9
does not affect the case of the prosecution. The
witnesses from the department of police cannot per se
be said to be untruthful or unreliable. It would depend
upon the veracity, credibility and unimpeachability of
their testimony. This Court, after referring to State of
U.P. v. Anil Singh1
, State, Govt. of NCT of Delhi v.
Sunil and another2
 and Ramjee Rai and others v.
State of Bihar3
, has laid down recently in Kashmiri
Lal v. State of Haryana4
that there is no absolute
command of law that the police officers cannot be cited
as witnesses and their testimony should always be
treated with suspicion. Ordinarily, the public at large
show their disinclination to come forward to become
witnesses. If the testimony of the police officer is found
to be reliable and trustworthy, the court can definitely
act upon the same. If, in the course of scrutinising the
evidence, the court finds the evidence of the police
1
 1988 Supp SCC 686
2
 (2001) 1 SCC 652
3
 (2006) 13 SCC 229
4
 2013 AIR SCW 3102
9Page 10
officer as unreliable and untrustworthy, the court may
disbelieve him but it should not do so solely on the
presumption that a witness from the department of
police should be viewed with distrust. This is also based
on the principle that quality of the evidence weighs
over the quantity of evidence.
11. Thus, the submission that the whole case should be
thrown overboard because of non-examination of
independent witness and reliance on the official
witnesses cannot be accepted. Presently, we shall
proceed to deal with the veracity and acceptability of
the testimony of the witnesses. The learned trial Judge
and the High Court, after x-ray of the evidence of the
witnesses, have come to the conclusion that Pramod
Kumar was a proclaimed offender; that information was
received by the competent authority that he was hiding
in the house of Chander Pal; that a team had gone to
apprehend him; that SI Jaswinder Singh along with other
members of the team waited at a distance of 100 yards
and Maharaj Singh went to the house of Chander Pal;
that the accused was found on the verandah of the
10Page 11
house and was asked to surrender but he immediately
took out a knife from his shirt pocket; that before he
could inflict a knife blow, he was overpowered by
Maharaj Singh and there was a grapple between the
two; and Maharaj Singh, receiving a bullet injury, fell
down and eventually succumbed to the injuries in the
hospital. It is not in dispute that Pramod Kumar has
received some injuries, but that would not be a ground
for discarding the prosecution version and acceptance
of the plea of the defence. The evidence on record is
required to be scrutinized and appreciated. The
witnesses, namely, Baljit Singh, PW-6, Samar Singh, PW-
8, Jaswinder Singh, PW-9, Rajbir Singh, PW-11 and Md.
Iqbal, PW-16, who have been examined in support of
the prosecution, have stood embedded in their version.
The witness, Samar Singh, PW-8, has vividly described
the occurrence and the graphic description has not
been, in any manner, dented in spite of the roving
cross-examination. It is apt to note that despite
searching cross-examination, none of the witnesses has
given way to any tergiversation. When their testimony
11Page 12
has not been varied from any spectrum, there is no
reason to discard them. Thus, the contention that there
should have been examination of independent
witnesses to corroborate the evidence of the police
officials has to be treated as mercurial. Therefore, we
unhesitatingly repel the said submission.
12. The next limb of argument pertains to the nature of
weapon that has caused the injury on the deceased and
the circumstances and the position in which the injury
was caused.
The first plank of this argument of the
learned counsel for the appellant is that the deceased
has been fired at by Samar Singh from his service
revolver. 
On a perusal of the evidence and the FSL
report relating to the country-made pistol, Ext. F-1,
seized from the accused, it is manifest that the fire arm
country-made pistol .303 bore was designed to fire a
standard .303 cartridge and that the pistol was in
working order. Its test fire was also successfully
conducted and the empty cartridge of .303 bore, Ext. C-
1, found in the chamber of the country-made pistol was
the empty cartridge fired from the country made pistol.
12Page 13
Therefore, to say that no shot was fired from the
country-made pistol is belied and the prosecution
version that it was the country-made pistol which was
fired by the accused that caused injuries to the
deceased deserves acceptance. 
13. The second plank of this limb of proponement is that
the accused-appellant could not have fired at the
stomach region of the deceased. 
From the post-mortem
report, it is clear that the bullet injury was from front to
back. It is not in dispute that the deceased and the
accused were grappling. The version of the
prosecution in that all of a sudden, the accused brought
out his desi katta and fired from a close range. This has
been clearly established by the evidence. 
Learned
counsel would submit that while grappling the position
changed and the bullet fired from the service revolver
of Samar Singh hit the deceased. 
In our considered
opinion, such a submission cannot be given any
acceptance as the desi katta was seized from the
accused and the weapon, as opined in the FSL report, is
the desi katta and further there is no material to prove
13Page 14
that gun shot was fired from the weapon of Samar
Singh. Thus, from the aforesaid, it is clear as crystal
that the shot was fired from the country-made pistol
seized from the custody of the accused-appellant.
Hence, the plea that there was a gun shot from the
revolver of Samar Singh while the accused-appellant
was grappling with the deceased being absolutely
mercurial in nature is rejected. 
14. In view of the aforesaid premised reasons, the appeals,
being sans substance, stand dismissed.
..............................................J.
[Dr. B. S. Chauhan]
..............................................J.
[Dipak Misra]
New Delhi;
July 01, 2013
14

WRONGFUL CONFINEMENT AND MURDER = the confessions made by the accused persons and the issue of leading to discovery of articles.=There can be no shadow of doubt that the confession part is inadmissible in evidence. It is also not in dispute that the panch witnesses have turned hostile but the facts remains that the place from where the dead body of the deceased and other items were recovered was within the special knowledge of the appellant.- wherein it has been ruled that by virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped person was found would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. In the case at hand, the factum of information related to the discovery of the dead body and other articles and the said information was within the special knowledge of the present appellant. Hence, the doctrine of confirmation by subsequent events is attracted and, therefore, we have no hesitation in holding that recovery or discovery in the case at hand is a relevant fact or material which can be relied upon and has been correctly relied upon.; the last seen theory = The appellant has been identified by Kantibhai, PW-13, and Durlabhbhai, PW-15, and their evidence remains totally embedded in all material particulars. It has been proven by the prosecution that the Maruti Zen car belongs to the appellant. There has been no explanation offered by the accused in this regard, though such incriminating materials were put to him. - the injuries found on the dead body were approximately four days old. On the contrary, from the testimony of Madhuben, PW-14, wife of the deceased, it is evincible that she had talked on telephone to both the accused persons. Thus, the circumstance pertaining to the theory of last seen deserves acceptance. ;WHEN THE QUESTION OF NON- EXAMINATION OF WITNESS ARISE = “It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, nonexamination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of nonexamination of other witnesses.”; NON- explanation under Section 313 CrPC = Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances.; SCOPE OF SEC.120 -B =It is urged by him that A-2 stood on the same footing as the appellant and hence, the High Court should have acquitted him. It is also canvassed by him that A-2 has been acquitted of the charge of criminal conspiracy and, therefore, the appellant deserves to be acquitted. The High Court has taken note of the fact that A-2 was not identified by any one in the test identification parade. It has also noticed number of material contradictions and omissions and, accordingly, acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. As far as conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators.- Resultantly, the appeal fails except for the acquittal for the offence of conspiracy. However, as we have sustained the conviction under Section 302 IPC and all the sentences are directed to be concurrent, the acquittal for the offence punishable under Section 120B would not help the appellant.

PUBLISHED IN http://judis.nic.in/supremecourt/filename=40453

Page 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1044 OF 2010
Harivadan Babubhai Patel ... Appellant
Versus
State of Gujarat .. Respondent
J U D G M E N T
Dipak Misra, J.
The appellant, A-1, along with Dipakbhai Zinabhai Patel, A-
2, Raghubhai Chaganbhai Patel, A-3, and Babubhai Khushalbhai
Patel, A-4, faced trial in Sessions Case No. 28 of 2006 in the
Court of the learned Sessions Judge, Valsad,
  for the offences
punishable under Sections 342, 346, 302, 120B and 201 read
with Section 34 of the Indian Penal Code (for short “IPC”).
The
learned trial Judge acquitted A-3 and A-4 as he found them
innocent and convicted A-1 and A-2 for all the offences and
imposed rigorous imprisonment for life and fine of Rs.1,000, in
1Page 2
default of payment of fine, to undergo further imprisonment for
one month under Section 302 and separate sentences for the
other offences with the stipulation that all the sentences shall
run concurrently. 
2. Grieved by the aforesaid conviction and sentence, the
accused-appellant and A-2 preferred Criminal Appeal
No. 860 of 2007 and
the High Court, by the impugned
judgment dated 20th April, 2009, acquitted A-2 
but sustained the conviction of the appellant for all the
offences.
Hence, the present appeal by the accused appellant, A-1.
3. Filtering the unnecessary details, the prosecution case
is that on 23.1.2006, deceased, Ashokbhai Nanubhai,
accompanied by his brother-in-law, Kantibhai Manilal
Patel, PW-13, had gone to Udwada R.S. Zanda Chowk on
his scooter and went to a tea stall where the deceased
was engaged in a conversation with one Durlabhbhai
Kikubhai Bhandari,PW-15. Durlabhbhai took the
deceased near the railway crossing where 3-4 persons
were waiting in a Maruti car. As the prosecution story
further gets unfurled, the deceased had discussion with
2Page 3
them and, thereafter, those persons informed that they
would take the deceased to the house of Gulia at Valsad
and, accordingly, they took him in the Maruti car
bearing No. GJ-15-K-9263. They had provided one
mobile number stating that if there would be any delay
in the return of the deceased, they could be contacted
on that mobile number. The brother-in-law of the
deceased supplied that mobile number to his sister
Madhuben, PW-14, and went to Daman for his work and
came back in the evening about 5.00 p.m. Thereafter,
he enquired from his sister whether she had talked with
the deceased on the given number or not and he was
informed by her that the mobile phone was picked up
by different persons who spoke differently and, at a
later stage, it was switched off. Someone speaking on
the mobile had also enquired from Madhuben whether
she had gone to the police station. Coming to know
about the situation, Kantibhai made enquiry and
searched about the deceased for two days and when
the deceased did not return, he lodged a complaint at
Pardi Police Station on 25.1.2006 which was registered
as C.R. No. 1-12/2006. After the criminal law was set in
3Page 4
motion, the investigating agency examined the
witnesses and after coming to know about the place
where the accused persons had hidden themselves, the
Investigating Officer arrested them and they confessed
before the police that they had wrongfully confined the
deceased and assaulted him. They also confessed that
they had pressurized the deceased for returning the
money as the money was paid to the passport agent,
namely, Bharatbhai, who was introduced by the
deceased, in the presence of one Ashokbhai alias
Amratbhai. They also stated that they had assaulted
the deceased on 23.1.2006 and when the deceased
succumbed to the injuries, they buried the dead body in
an agricultural farm.
At the instance of the accused,
the dead body of the deceased was taken out in the
presence of the panch witnesses. Discovery
panchnama was prepared in presence of the Executive
Magistrate.
After carrying out the seizure of footwear,
clothes and jute old blanket, samples of the same were
sent for forensic examination and thereafter, the dead
body, after being identified by wife Madhuben, was
initially sent to the Dungri Primary Health Centre for
4Page 5
post mortem, but as the Medical Officer opined that it
was to be done by a forensic expert, it was sent to Surat
Civil Hospital Forensic Department. The identification of
the accused persons was carried out by the Executive
Magistrate. The Maruti car which was used for the
offence was taken into possession. The investigating
agency examined number of witnesses and, after
completing the investigation, 
placed the charge-sheet
before the competent court for all the offences in
respect of A-1 to A-3 and 
as far as A-4 was concerned,
he was charge-sheeted for the offence punishable
under Section 201 IPC.
4. The accused persons pleaded innocence and false
implication and claimed to be tried.
5. The prosecution, in support of its case, examined 19
witnesses and got number of documents including the
FIR, discovery panchnama, panchnama of the seized
articles, the FSL report and the serology report and
panchnama of the test identification parade, exhibited.
In the statement under Section 313 CrPC, the accused
persons made a bald denial of every aspect and did not
5Page 6
offer any explanation and chose not to adduce any
evidence.
6. The learned trial Judge, on the basis of the material
brought on record, found A-1 and A-2 guilty of all the
offences and the High Court affirmed the conviction and
sentence in respect of A-1 only as stated hereinbefore.
7. We have heard Mr. Rauf Rahim, learned counsel for the
appellant and Ms. Hemantika Wahi, learned counsel for
the respondent-State.
8. It is the undisputed position that the death was
homicidal in nature and
the case of the prosecution
rests on the circumstantial evidence.
Learned counsel
for the appellant has assiduously endeavoured to point
out certain loopholes and contended that because of
the said dents, the prosecution version deserves to be
discarded. Per contra, learned counsel for the
respondent would support the analysis made in the
judgment of the High Court and stand for its
sustenance.
6Page 7
9. We shall deal with the challenges and the stance in
oppugnation one by one.
The first ground of attack is
that there is delay in lodging of the FIR and in the
absence of explanation, the case of the prosecution
should be thrown overboard. 
On a perusal of the
judgments, it is noticeable that the said aspect has
been dealt with in great detail and the plea of delay has
been negatived. It is urged before us that though the
occurrence, as alleged, had taken place on 23.1.2006,
yet the FIR was lodged only on 25.1.2006 indicating
that efforts were being made to search for the deceased
and the said effort is based on some kind of surmises
which do not inspire confidence. On a close scrutiny, it
is evident that as per the FIR and the evidence of the
informant, PW-13, and Madhuben, PW-14, they had
searched for the deceased and realizing that it was an
exercise in futility, they went to the police station. It
has been deposed by them that they had never
apprehended that the deceased would be done to death
though there was a previous quarrel pertaining to
demand of money from the deceased as he had
introduced the passport agent to A-1 who had paid
7Page 8
more than rupees one lakh to obtain the necessary
documents to go to United States of America. It has
been clearly proven that the informant was engaged in
search and he had not apprehended that the life spark
of the deceased would be extinct. The issue is whether
such an explanation is to be believed. In this context,
we may refer with profit to the authority in State of
H.P. v. Gian Chand1
 wherein a three-Judge Bench has
opined that the delay in lodging the FIR cannot be used
as a ritualistic formula for doubting the prosecution
case and discarding the same solely on the ground of
delay. If the explanation offered is satisfactory and
there is no possibility of embellishment, the delay
should not be treated as fatal to the case of the
prosecution.
10. In Ramdas and others v. State of Maharashtra2
, it
has been ruled that when an FIR is lodged belatedly, it
is a relevant fact of which the court must take notice of,
but the said fact has to be considered in the light of
1
 (2001) 6 SCC 71
2
 (2007) 2 SCC 170
8Page 9
other facts and circumstances of the case. It is
obligatory on the part of the court to consider whether
the delay in lodging the report adversely affects the
case of the prosecution and it would depend upon the
matter of appreciation of evidence in totality.
11. In Kilakkatha Parambath Sasi and others v. State
of Kerala3
, it has been laid down that when an FIR has
been lodged in a belated manner, inference can rightly
follow that the prosecution story may not be true but
equally on the other side, if it is found that there is no
delay in the recording of the FIR, it does not mean that
the prosecution story stands immeasurably
strengthened. Similar view has also been expressed in
Kanhaiya Lal and others v. State of Rajasthan4
.
12. Scrutinized on the anvil of the aforesaid enunciation of
law, we are disposed to think that there had been no
embellishment in the FIR and, in fact, there could not
have been any possibility of embellishment. As we find,
3
 AIR 2011 SC 1064
4
 2013 (6) SCALE 242
9Page 10
the case at hand does not reveal that the absence of
spontaneity in the lodgment of the FIR has created a
coloured version. On the contrary, from the other
circumstances which lend support to the prosecution
story, it is difficult to disbelieve and discard the
prosecution case solely on the ground that the FIR was
lodged on 25.1.2006 though the deceased was taken by
the accused persons some time on 23.1.2006. The
explanation offered pertaining to the search of the
deceased by the informant has been given credence to
by the learned trial Judge as well as by the High Court
and, in our considered opinion, adjudging the entire
scenario of the prosecution case, the same deserves
acceptation. Hence, the said submission is sans
substance.
13. The next limb of attack relates to
the confessions made
by the accused persons and the issue of leading to
discovery of articles.
 It is submitted that the confession
part is absolutely inadmissible and that apart, when the
panch witnesses had not supported the panchnama, the
recovery or discovery of the seized articles cannot be
10Page 11
utilized against the appellant.
There can be no shadow
of doubt that the confession part is inadmissible in
evidence. 
It is also not in dispute that the panch
witnesses have turned hostile but the facts remains that
the place from where the dead body of the deceased
and other items were recovered was within the special
knowledge of the appellant.
 In this context, we may
usefully refer to
A.N. Venkatesh and another v. State of Karnataka5
 wherein it has been ruled that by
virtue of Section 8 of the Evidence Act, the conduct of
the accused person is relevant, if such conduct
influences or is influenced by any fact in issue or
relevant fact. The evidence of the circumstance,
simpliciter, that the accused pointed out to the police
officer the place where the dead body of the kidnapped
person was found would be admissible as conduct
under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously
with or antecedent to such conduct falls within the
purview of Section 27 of the Evidence Act or not.
In the
5
 (2005) 7 SCC 714
11Page 12
said decision, reliance was placed on the principle laid
down in Prakash Chand v. State (Delhi Admin.)6
. It
is worth noting that in the said case, there was material
on record that the accused had taken the Investigating
Officer to the spot and pointed out the place where the
dead body was buried and this Court treated the same
as admissible piece of evidence under Section 8 as the
conduct of the accused.
14. In State of Maharashtra v. Damu S/o Gopinath
Shinde and others7
, it has been held as follows: -
“It is now well settled that recovery of an object is
not discovery of a fact as envisaged in the section.
The decision of the Privy Council
in Pulukuri Kottaya v. Emperor8
 is the most quoted authority for
supporting the interpretation that
the “fact discovered” 
envisaged in the section embraces the
place from which the object was produced, the
knowledge of the accused as to it, but the
information given must relate distinctly to that
effect.”
15. Same principle has been laid down in State of
Maharashtra v. Suresh9
, State of Punjab v.
6
 AIR 1979 SC 400
7
 (2000) 6 SCC 269
8
 AIR 1947 PC 67
9
 (2000) 1 SCC 471
12Page 13
Gurnam Kaur and others10
, Aftab Ahmad Anasari v.
State of Uttaranchal11
, Bhagwan Dass v. State
(NCT) of Delhi12
, Manu Sharma v. State13 and Rumi
Bora Dutta v. State of Assam14
.
16. In the case at hand, the factum of information related to
the discovery of the dead body and other articles and
the said information was within the special knowledge
of the present appellant. Hence, the doctrine of
confirmation by subsequent events is attracted and,
therefore, we have no hesitation in holding that
recovery or discovery in the case at hand is a relevant
fact or material which can be relied upon and has been
correctly relied upon.
17. The next circumstance that has been seriously criticized
by Mr. Rauf Rahim, learned counsel for the appellant,
10
 (2009) 11 SCC 225
11
 (2010) 2 SCC 583
12
 AIR 2011 SC 1863
13
 AIR 2010 SC 2352
14
 Crl.A. 737 of 2006 decided on 24.5.2013
13Page 14
pertains to the last seen theory.
It is submitted by him
that as per the testimony of the informant, the
appellant along with others had taken the deceased in a
Maruti car, but there is no material evidence to suggest
that the accused was in the company of the deceased
for two days.
The learned counsel would further submit
that the last seen theory faces a hazard because of the
time gap and, hence, should be totally discarded. It is
evident from the material on record that the deceased
was taken away from Zanda Chowk in a Maruti car.
The
appellant has been identified by Kantibhai, PW-13, and
Durlabhbhai, PW-15, and their evidence remains totally
embedded in all material particulars.
It has been
proven by the prosecution that the Maruti Zen car
belongs to the appellant. There has been no
explanation offered by the accused in this regard,
though such incriminating materials were put to him.
It
is also worth noting here that from the testimony of Dr.
Pandav Vinodchandra Prajapati, PW-16, who had
conducted the autopsy on 28.1.2006 about 10.00 a.m.,
that the injuries found on the dead body were
approximately four days old.
Thus, the argument that
14Page 15
there is long gap between the last seen and the time of
death melts into insignificance inasmuch as the time
the deceased was seen in the company of A-1 and the
time of death is not long and the said fact has been
duly established by the medical evidence and we see
no reason to discredit the same. It is apt to note here
that A-1 had said that they were taking the deceased to
the house of Gulia but during investigation, nothing was
found in the house of Gulia.
On the contrary, from the
testimony of Madhuben, PW-14, wife of the deceased, it
is evincible that she had talked on telephone to both
the accused persons. Thus, the circumstance
pertaining to the theory of last seen deserves
acceptance. 
18. The next plank of submission is that Gulia to whose
house the deceased was taken to has not been
examined by the prosecution and non-examination of
such a material witness makes the whole case of the
prosecution unacceptable.
The learned trial Judge,
dealing with the said contention, has opined that during
the test identification parade, Shaikh Gulamhusssain
15Page 16
had not identified the accused persons and that is the
reason the prosecution was of the view that the said
witness would not support the case of the complainant
and, accordingly, chose not to examine him.
In State of H.P. v. Gian Chand (supra), it has been opined that
non-examination of a material witness is not a
mathematical formula for discarding the weight of the
testimony available on record, howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court leveled
against the prosecution should be examined in the
background of the facts and circumstances of each case
so as to find whether the witnesses are available for
being examined in the court and were yet withheld by
the prosecution. The three-Judge Bench further
proceeded to observe that the court is required first to
assess the trustworthiness of the evidence available on
record and if the court finds the evidence adduced
worthy of being relied on, then the testimony has to be
accepted and acted upon though there may be other
witnesses available who could also have been examined
but were not examined.
16Page 17
19. In Takhaji Hiraji v. Thakore Kubersing Chamansing
and others15
, the Court has opined thus: -
“It is true that if a material witness, who would unfold
the genesis of the incident or an essential part of the
prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the
prosecution case which could have been supplied or
made good by examining a witness who though
available is not examined, the prosecution case can
be termed as suffering from a deficiency and
withholding of such a material witness would oblige
the court to draw an adverse inference against the
prosecution by holding that if the witness would have
been examined it would not have supported the
prosecution case. On the other hand if already
overwhelming evidence is available and examination
of other witnesses would only be a repetition or
duplication of the evidence already adduced, nonexamination of such other witnesses may not be
material. In such a case the court ought to scrutinise
the worth of the evidence adduced. The court of
facts must ask itself — whether in the facts and
circumstances of the case, it was necessary to
examine such other witness, and if so, whether such
witness was available to be examined and yet was
being withheld from the court. If the answer be
positive then only a question of drawing an adverse
inference may arise. If the witnesses already
examined are reliable and the testimony coming
from their mouth is unimpeachable the court can
safely act upon it, uninfluenced by the factum of nonexamination of other witnesses.”
15
 (2001) 6 SCC 145
17Page 18
20. In Dahari and others v. State of Uttar Pradesh16
,
while discussing about the non-examination of material
witness, the Court expressed the view that when he was
not the only competent witness who would have been
fully capable of explaining the factual situation correctly
and the prosecution case stood fully corroborated by
the medical evidence and thetestimony of other reliable
witnesses, no adverse inference could be drawn against
the prosecution. Be it noted, the Court also took note of
the fact that during the cross-examination of the
Investigating Officer, none of the accused persons had
voiced their concerns or raised any apprehension
regarding the non-examination of the material witness
therein.
21. In the case at hand, it was A-1 who had announced that
he was taking the deceased to the house of Gulia. On a
search being conducted, nothing has been found from
the house of Gulia. There has been no crossexamination of the Investigating Officer about the nonexamination of Gulia. On the contrary, it was A-1 who
16
 (2012) 10 SCC 256
18Page 19
had led to the discovery of the dead body and other
articles. Thus, when the other evidence on record are
cogent, credible and meet the test of circumstantial
evidence laid down in Sharad Birdhichand Sarda v.
State of Mararashtra17 State v. Saravanan18, Sunil
Kumar Sambhudayal Gupta v. State of
Maharashtra19 and further reiterated in Jagroop
Singh v. State of Punjab20
, there is no justification to
come to hold that the prosecution has deliberately
withheld a witness that creates a concavity in the
concept of fair trial.
22. Another facet is required to be addressed to.
Though all
the incriminating circumstances which point to the guilt
of the accused had been put to him, yet he chose not to
give any explanation under Section 313 CrPC except
choosing the mode of denial.
 It is well settled in law
that when the attention of the accused is drawn to the
17
 (1984) 4 SCC 116
18
 (2008) 17 SCC 587
19
 (2010) 13 SCC 657
20
 (2012) 11 SCC 768
19Page 20
said circumstances that inculpated him in the crime and
he fails to offer appropriate explanation or gives a false
answer, the same can be counted as providing a
missing link for building the chain of circumstances.
(See State of Maharashtra v. Suresh21).
In the case
at hand, though number of circumstances were put to
the accused, yet he has made a bald denial and did not
offer any explanation whatsoever. Thus, it is also a
circumstance that goes against him.
23. We will be failing in our duty if we do not note another
submission of the learned counsel for the appellant.
It
is urged by him that A-2 stood on the same footing as
the appellant and hence, the High Court should have
acquitted him.
It is also canvassed by him that A-2 has
been acquitted of the charge of criminal conspiracy
and, therefore, the appellant deserves to be acquitted.
The High Court has taken note of the fact that A-2 was
not identified by any one in the test identification
parade. 
It has also noticed number of material
contradictions and omissions and, accordingly,
21
 (2000) 1 SCC 471
20Page 21
acquitted A-2. As far as the appellant is concerned, all the circumstances lead towards his guilt. 
As far as
conspiracy under Section 120B is concerned, we are inclined to think that the High Court erred in not recording an order of acquittal under Section 120B as no other accused had been found guilty. The conviction
under Section 120B cannot be sustained when the other accused persons have been acquitted, for an offence of conspiracy cannot survive if there is acquittal of the other alleged co-conspirators.
It has been so laid down
in Fakhruddin v. The State of Madhya Pradesh22
.
Thus, the conviction of the appellant under Section
120B is set aside.
24. Resultantly, the appeal fails except for the acquittal for
the offence of conspiracy. 
However, as we have
sustained the conviction under Section 302 IPC and all
the sentences are directed to be concurrent, the
acquittal for the offence punishable under Section 120B
would not help the appellant. Therefore, the appeal
stands dismissed, but the conviction and sentence
22
 AIR 1967 SC 1326
21Page 22
under Section 120B IPC is set aside. The other
convictions and sentences will stand.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
 [Dipak Misra]
New Delhi;
July 01, 2013.
22

CHEATING - HAVING SEXUAL INTERCOURSE ON THE PROMISE OF MARRYING = The facts as they unfold from the statement of the prosecutrix Poomari (PW1) are, that even before the first act of sexual intercourse, the accused-appellant Karthick used to tease her. He also used to tell her, that he wished to marry her. The fact that he had sexual intercourse with her, when the prosecutrix Poomari (PW1) was all alone in her house, is not disputed. The prosecutrix Poomari (PW1) has confirmed in her deposition, that at the time of the first sexual intercourse with her at her house, the accused- appellant Karthick had gagged her mouth with his right hand. He had promised to marry her, by placing his hand on her head, after having ravaged her. The subsequent acts of sexual intercourse, were actions of actively cheating her, by giving her the impression that he would marry her. The occurrence at the Murugan temple, is of significant importance. At the temple, for the first time the accused-appellant Karthick told the prosecutrix Poomari (PW1), that he would not marry her. The instant factual position has been confirmed by Chandran (PW9) and Ilangovan (PW10). Despite lengthy cross-examination, the accused-appellant has not been able to create any dent in the testimony of the prosecutrix Poomari (PW1). In the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) by promising to marry her. On the strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. Therefore, in the facts and circumstances of this case, it is not possible for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused- appellant Karthick with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.; NO DELAY IN FILING A CASE = there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. 18. No other submission, besides those noticed hereinabove, was advanced at the hands of the learned counsel for the appellant. For the reasons recorded hereinabove, we find no merit in this appeal. The same is accordingly dismissed.= "The accused-appellant Karthick was ordered to be released on bail by this Court vide order dated 4.4.2008. He shall now be taken into custody, to serve the remaining part of the sentence."

' PUBLISHED IN http://judis.nic.in/supremecourt/filename=40457

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.601 OF 2008


Karthi @ Karthick ...
Appellant

Versus

State Rep. by Inspector of Police, Tamil Nadu ... Respondent



J U D G M E N T


Jagdish Singh Khehar, J.

1. The appellant, Karthi @ Karthick was convicted for the offences
under Sections 376 and 417 of the Indian penal Code, 1860 by the Assistant
Sessions Judge, Virudhunagar in Sessions Case No.119 of 2004 by an order
dated 30.11.2004. The aforesaid conviction was affirmed by the Additional
District and Sessions Judge (Fast Track Court), Virudhunagar, in Criminal
Appeal No.2 of 2005, by an order dated 1.6.2005. The appellant's Revision
Petition (Criminal Revision Case No.439 of 2005) was dismissed by the
Madurai Bench of the Madras High Court on 18.12.2006. The appellant has
approached this Court to assail the orders passed by the Trial Court, the
appellate Court and the Revisional Court.
2. The accusation in the instant controversy was levelled, first of
all, by the prosecutrix Poomari (PW1). At the time of occurrence, she was
aged between 18 to 20 years. She was then a resident of Achampatti. The
prosecutrix Poomari (PW1) had pointed an accusing finger, at the accused-
appellant Karthick. The accused appellant was aged above 20 years at the
time of occurrence. He was also a resident of Achampatti. The accused-
appellant Karthick, besides being a neighbour of the prosecutrix Poomari
(the prosecutrix Poomari (PW1)) also belonged to the same caste as the
prosecutrix.
3. From the factual position emerging from the record of this case,
it appears that the prosecutrix Poomari (PW1) had lost her mother in early
childhood. At the relevant time, therefore, she was living with the family
of her brother Manikannan (PW2) and sister-in-law Pitchumani (PW3), (wife
of Manikannan, PW2). The father of the prosecutrix Poomari (PW1), i.e.,
Muthukaruppa Thevar (PW4) was then, also residing in the same house.
4. The accusation against Karthick, was made on 10.10.2003. The
initiation of the series of occurrences, leading to the filing of the
complaint, had allegedly commenced six months prior thereto. According to
the statement of the prosecutrix Poomari (PW1), the accused-appellant
Karthick used to generally tease her. He also used to ask her to marry
him. On the first date of occurrence, the prosecutrix Poomari (PW1) was
alone in the house. The other family members had gone to the temple. The
accused-appellant Karthick, finding her alone, entered her house. At that
juncture, she was allegedly asleep. The accused-appellant Karthick had
allegedly requested the prosecutrix Poomari (PW1) to allow him to have
sexual intercourse with her. The prosecutrix allegedly refused to consent.
She claims to have told the appellant, that sexual intercourse could only
be had after marriage. Yet, he forced himself on her, after he had gagged
her mouth with his right hand. The accused-appellant Karthick, then
allegedly committed to the prosecutrix Poomari (PW1), that he would marry
her. Consequent upon her refusal to have sexual intercourse with him, the
accused-appellant Karthick allegedly gagged her mouth to prevent her from
raising an alarm. He then, had sexual intercourse with her. He told her
not to reveal the incident to anyone, on the assurance, that he would marry
her. He had allegedly promised her marriage, by placing his hand on her
head. Believing the promise made by the accused-appellant Karthick, the
prosecutrix Poomari (PW1) did not reveal the first occurrence, to anyone.
5. After the first occurrence, the acknowledged factual position is,
that the accused-appellant Karthick and the prosecutrix Poomari (PW1) were
repeatedly engaged in consensual sex at different places. During the
entire interregnum, according to the prosecutrix, the accused-appellant
Karthick swore, that he would marry her.
6. On 5.10.2003, the prosecutrix Poomari had gone to Murugan temple,
Kariapatti in the company of the accused-appellant Karthick. At the
temple, she again requested Karthick to marry her. He, however, refused to
marry her. Consequent upon the refusal, the prosecutrix Poomari (PW1)
allegedly divulge the entire factual position to her brother Manikannan
(PW2), and other family members. Manikannan (PW2), and her father
Muthukaruppa Thevar (PW4) decided to get the matter sorted out through the
village elders. They narrated the relationship between the prosecutrix
Poomari and the accused-appellant Karthick, to a number of village elders
including Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8).
7. The village elders then summoned the accused-appellant Karthick.
For settling the dispute, a panchayat was held. The panchayat made efforts
to persuade the accused-appellant Karthick to marry the prosecutrix
Poomari. The accused-appellant Karthick, however, refused to marry Poomari
(PW1). On the refusal of the accused-appellant Karthick to marry the
prosecutrix, the village elders advised her to make a complaint to the
police. The prosecutrix Poomari (PW1), thereupon, lodged a report on
10.10.2003 at 8.00 a.m., with the Inspector of Police, Kariapatti.
8. The accused-appellant Karthick surrendered before the Judicial
Magistrate No.II, Virudhunagar on 5.11.2003.
9. On completion of investigation, a charge-sheet was filed before
the Judicial Magistrate No.II, Virudhunagar. Since charges levelled
against the accused-appellant Karthick related to offences triable by a
Court of Sessions, the matter was committed to the Principal District and
Sessions Court, Virudhunagar at Srivilliputtur. On committal, Sessions
Case No.119 of 2004 was placed before the Assistant Sessions Judge,
Virudhunagar for trial.
10. During the course of the trial, 16 witnesses were examined by the
prosecution, and 12 exhibits were placed on the record of the case. The
statement of the accused appellant Karthick was then recorded under Section
313 of the Code of Criminal Procedure. The accused appellant did not lead
any evidence in his defence, even though he was afforded an opportunity to
do so.
11. With the assistance of learned counsel for the rival parties, we
have gone through the judgments, which are subject matter of challenge at
the hands of the accused-appellant Karthick. We have also been taken
through the statements of certain witnesses specially the statement of the
prosecutrix Poomari (PW1), and that of Dr. K.P.Santhakumari (PW14), i.e.,
the doctor who subjected the prosecutrix Poomari (PW1) to medical
examination. We may, therefore, summarise the sum and substance of the
evidence recorded at the behest of the prosecution before the Trial Court.

(i) The prosecutrix Poomari (PW1) fully reiterated the factual
position recorded by her in her complaint dated 10.10.2003. The statement
of the prosecutrix Poomari (PW1) was fully supported by her brother
Manikannan (PW2) and her father Muthukaruppa (PW4). Despite lengthy cross-
examination, the testimony of the aforesaid witnesses could not be shaken.

(ii) On an ancillary issue connected with the culpability of the
accused-appellant Karthick, the prosecution had examined four village
elders of Alagapuri, namely, Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) and Nagesh (PW8). All of the aforesaid witnesses supported the
prosecution version, by reiterating the convening of a panchayat where the
accused-appellant Karthick was summoned. They affirmed the fact that the
accused-appellant Karthick had refused to marry the prosecutrix Poomari
(PW1), when he had appeared before them. The instant aspect of the matter
leads to one interesting inference, namely, that the elders of the village
were convinced, that in view of the relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick, they ought to get
married, and it is therefore, that the accused-appellant Karthick was asked
by the panchayat, to marry the prosecutrix Poomari (PW1). But he refused
to do so. Otherwise, there would have been no question of the panchayat
asking the accused-appellant Karthick to marry the prosecutrix Poomari
(PW1). Since the accused-appellant Karthick did not agree to the proposal
of the elders of the village, they recommended the prosecutrix Poomari
(PW1) to make a complaint to the police. There is nothing incongruous or
discordant in the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) or Nagesh (PW8). None was pointed out during the course of hearing.
Thus, viewed, there can be no doubt that the proceedings during the holding
of the panchayat would constitute strong circumstantial evidence for
drawing an inference in the facts of this case.
(iii) There is another set of relevant witnesses, as well. These
witnesses are allegedly friends of the accused-appellant Karthick, namely,
Chandran (PW9) and Ilangovan (PW10). Chandran (PW9) deposed, that he had
seen the prosecutrix Poomari (PW1) and the accused-appellant Karthick at
the Murugan temple. During this meeting with the prosecutrix Poomari (and
the accused-appellant Karthick), the prosecutrix had told Chandran (PW9)
that the accused-appellant Karthick who had earlier promised to marry her
had now refused to do so, just preceding their meeting at the temple. The
statement of Ilangovan (PW10) was to the same effect. Ilangovan (PW10)
affirmed having seen both the accused-appellant Karthick and the
prosecutrix Poomari (PW1) together on a couple of occasions. He also
deposed, that he had met them at the Murugan temple. At the temple, he was
told by the prosecutrix Poomari (PW1), that the accused-appellant Karthick,
had refused to marry her. In his statement, he acknowledged that she had
also informed him of having had a physical relationship with the accused-
appellant Karthick, on account of the accused-appellant having promised to
marry her. Both Chandran (PW9) and Ilangovan (PW10) had denied the
suggestion put to them during the course of their cross-examination, that
they were deposing falsely. The statements of Chandran (PW9) and Ilangovan
(PW10), who are friends of the accused-appellant Karthick further show,
that they were aware of the relationship between the prosecutrix Poomari
and karthick, and that, the accused-appellant Karthick had retracted from
his promise to marry her, at the Murugan temple.
12. Three sets of statements, the first comprising of the prosecutrix
Poomari (PW1), her brother Manikannan (PW2) and her father Muthukaruppa
Thevar (PW4), read with the statements of the elders of the village, namely
Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), when
examined in conjunction with the statements of two friends of the accused-
appellant Karthick, Chandran (PW9) and Ilangovan (PW10), leave no room for
any doubt that the accused-appellant Karthick in the first instance had
unwilling sexual relationship with the prosecutrix Poomari (PW1). Even
though she had protested and repulsed his physical advances by telling him
that this would be possible only after their marriage. Yet, he forced
himself on her, after gagging her mouth with his right hand. After having
had sexual intercourse with the prosecutrix Poomari, her when she was all
alone in her house, he told her not to reveal the incident to anyone by
assuring her, that he would marry her. He also promised to marry her, by
placing his hand on her head. The relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick is supported by the
circumstantial evidence of the elders of the family of the prosecutrix.
The elders of the family had then approached the village elders, with a
request to amicably resolve the issue. Despite the asking of the elders of
the village, the accused-appellant Karthick declined to marry the
prosecutrix Poomari (PW1). The version of the prosecutrix Poomari (PW1),
is also independently affirmed from the statements of Chandran (PW9) and
Ilangovan (PW10) who deposed in connection with the occurrence at Murugan
temple, during which the accused-appellant Karthick, for the first time
refused to marry the prosecutrix Poomari (PW1). It is in the background of
the aforesaid factual position, that we shall endeavour to determine the
submissions at the behest of the accused-appellant Karthick.
13. First and foremost, the learned counsel for the appellant placed
reliance on the judgment rendered in Uday vs. State of Karnataka, (2003) 4
SCC 46. Relying on the aforesaid judgment, learned counsel for the
appellant invited our attention to the following conclusions drawn therein
:
"21. It therefore appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be said to be given
under a misconception of fact. A false promise is not a fact within
the meaning of the Code. We are inclined to agree with this view, but
we must add that there is no strait jacket formula for determining
whether consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of fact. In
the ultimate analysis, the tests laid down by the Courts provide at
best guidance to the judicial mind while considering a question of
consent, but the Court must, in each case, consider the evidence
before it and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts which may
have a bearing on the question whether the consent was voluntary, or
was given under a misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden is on the
prosecution to prove each and every ingredient of the offence, absence
of consent being one of them."


Besides the aforesaid, learned counsel for the appellant also placed
reliance on the decision rendered in Zinder Ali Sheikh vs. State of West
Bengal & Anr., (2009) 3 SCC 761. From the instant judgment learned counsel
placed reliance on the following observations :
"14. There is no effective Cross-Examination to this witness.
One question was asked about her clinical and physical examination. It
was suggested firstly that she had suffered injuries on her private
parts and person. The witness, however, stated that there was no
bleeding injury, meaning thereby, that the injuries were insignificant
considering that she was medically examined after about 6 months. Such
admission is meaningless. Her version regarding rape, however, has
gone unchallenged. She was asked about the workplace and the boys
being there, however, non-disclosure to the boys would only be a
natural behaviour and cannot lead us to the conclusion that she had
consented for the sexual intercourse. There was no reason for the poor
girl to falsely implicate the accused. There is no suggestion of any
love-affair with the accused also. Her version that she was raped by
the accused, goes totally unchallenged. Her version that she was
forcibly caught and a napkin was put inside her mouth before the
accused had committed rape on her, was a little exaggerated, but it
does not demolish her version that she was raped by the accused.

15. PW-2, Moshar SK, in his deposition, had spoken about the
Chandmoni and her father, telling him that Chandmoni was raped by the
accused. He had also spoken about the village meeting, where, it was
decided that the accused should marry Chandmoni. Again, there is no
Cross-Examination of this witness. Of course, this witness had stated
that he had not made any statement to the Police, as he was not
interrogated.

16. Another witness PW-3 Tajem SK (Mallick) also spoke about
the village meeting, which was held at the instance of Markam Ali SK,
father of the prosecuterix. He also claimed that he was not
interrogated by the Police. In his Cross-examination itself, it has
come that there were about 200-250 persons present in the village
meeting, where, it was decided that the accused was guilty.

Based on the observations made by this Court in the aforesaid judgments, it
was the vehement contention of the learned counsel for the appellant, that
each case wherein the allegation of rape is based on the procuring of
consent for sexual intercourse by deceit, has to be determined individually
on the basis of the peculiarities of the case being handled. We shall,
therefore, endeavour to determine the issue in hand on the aforesaid
parameters.
14. The factual submission advanced at the hands of the learned
counsel for the appellant was that the prosecutrix Poomari (PW1) was a
consenting party to the sexual relationship which the accused-appellant
Karthick had with her. That may be so at a subsequent stage, yet it is not
possible for us to accept the instant submission advanced at the hands of
the learned counsel for the appellant for his exculpation. 
The facts as
they unfold from the statement of the prosecutrix Poomari (PW1) are, that even before the first act of sexual intercourse,
the accused-appellant
Karthick used to tease her. He also used to tell her, that he wished to marry her. 
The fact that he had sexual intercourse with her, when the
prosecutrix Poomari (PW1) was all alone in her house, is not disputed. 
The
prosecutrix Poomari (PW1) has confirmed in her deposition, that at the time of the first sexual intercourse with her at her house, the accused- appellant 
Karthick had gagged her mouth with his right hand. 
He had
promised to marry her, by placing his hand on her head, after having ravaged her. 
The subsequent acts of sexual intercourse, were actions of
actively cheating her, by giving her the impression that he would marry her. 
The occurrence at the Murugan temple, is of significant importance.
At the temple, 
for the first time the accused-appellant Karthick told the
prosecutrix Poomari (PW1), that he would not marry her. The instant factual position has been confirmed by Chandran (PW9) and Ilangovan (PW10).
Despite lengthy cross-examination, 
the accused-appellant has not been able
to create any dent in the testimony of the prosecutrix Poomari (PW1). 
In
the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) by promising to marry her. 
On the
strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. 
Therefore, in the facts and circumstances of this
case, it is not possible for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused- appellant Karthick with the prosecutrix Poomari was consensual. 
Obtaining
consent by exercising deceit, cannot be legitimate defence to exculpate an accused.
15. The second contention advanced at the hands of the learned counsel
for the appellant was, that the accused-appellant Karthick had not given
any promise to the prosecutrix Poomari (PW1), that he would marry her.
From all the reasons referred to by us, while dealing with the first
contention advanced by learned counsel for the appellant, it is not
possible for us to accept the instant contention as well. However, in
addition to the factual position referred to while dealing with the first
contention, there is something further that needs to be recorded. It is
necessary to notice, that in the first instance when the prosecutrix
Poomari (PW1) disclosed the matter of deception and sexual intercourse to
her family, the matter was taken to the village elders. Four village
elders have appeared before the Trial Court and recorded their statements.
Each one of them affirmed, that they had required the accused-appellant
Karthick to agree to marry the prosecutrix Poomari (PW1) on account of his
physical relationship with her. Only on denial to accede to their request,
on their suggestion, the matter was reported to the police. The instant
aspect of the matter fully demolishes the projection made by the accused-
appellant Karthick, while recording of his statement under Section 313 of
the Code of Criminal Procedure. During his aforesaid statement, he had
expressly alleged, that it was for the purpose of forcing the accused-
appellant to shell out an exorbitant sum of money to the prosecutrix
Poomari (PW1) and her family members, that the instant accusation had been
levelled against him. Actually from the statements of Veerachamy (PW5),
Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), it clearly emerges that the
intention of the prosecutrix Poomari (PW1) and her brother Manikannan
(PW2), as also her father, Muthukaruppa Thevar (PW4) was, that he should
marry her. The desire of the family, that the accused-appellant should
marry the prosecutrix was based on the undisputed factual position, that
Karthick had had sexual intercourse with Poomari repeatedly. No such
suggestion was shown to have been made to the concerned prosecution
witnesses. This was only an afterthought. It is, therefore, not possible
for us to accept the plea canvassed at the hands of the learned counsel for
the appellant, that the accused appellant had not made any promise to the
prosecutrix Poomari (PW1), that he would marry her.
16. The last contention advanced at the hands of the learned counsel
for the appellant was, that the first occurrence of sexual intercourse
commenced six months prior to the date when the complaint was made to the
Police (on 10.10.2003). It was, therefore, the contention of the learned
counsel for the appellant, that same should be treated as an afterthought.
It was pointed out, that the registration of a case by the prosecutrix
Poomari (PW1) was no more than a scheme to falsely accuse and harm the
accused-appellant. It was submitted, that even a day's delay in
registering a complaint has vital repercussions. It was also pointed out,
that delay in the instant case, had obvitated any positive finding on the
basis of a medical examination of the prosecutrix Poomari (PW1). It is,
therefore, the vehement contention of the learned counsel for the
appellant, that delay in registering the complaint with the police in the
facts and circumstances of this case, should be accepted as sufficient to
infuse a sense of doubt in the prosecution story.
17. Having examined the contention advanced at the hands of the
learned counsel for the appellant, we are of the view that 
there has been
no delay whatsoever at the hands of the prosecutrix Poomari (PW1). 
As long
as commitment of marriage subsisted, the relationship between the parties
could not be described as constituting the offence of rape under Section
376 of the Indian penal Code. 
It is only after the accused-appellant
Karthick declined to marry the prosecutrix Poomari (PW1), that a different
dimension came to be attached to the physical relationship, which had
legitimately continued over the past six months. 
Things changed when the
accused-appellant declined to marry the prosecutrix. 
After the promised
alliance was declined, the prosecutrix without any delay disclosed the
entire episode to her immediate family. 
Without any further delay, the
brother and father of the Poomari (PW1) approached the village elders. 
The
village elders immediately summoned the accused-appellant Karthick by
holding a panchayat. 
The village elders made all efforts to settled the
issue amicably. 
The family, as is usual in such matters, wished to settle
the matter amicably by persuading the accused-appellant to view the matter
realistically. 
It is only on the refusal of the accused-apellant Karthick,
to marry the prosecutrix Poomari (PW1), that the question of making a
criminal complaint arose. 
After the meetings of the panchayat, wherein the
accused-appellant declined to marry the prosecutrix Poomari (PW1), without
any further delay, the prosecutrix Poomari (PW1) reported the matter to the
police on 10.10.2003. 
In the above view of the matter, in the peculiar
facts of this case, it is not possible for us to hold, that any doubt can
be said to have been created in the version of the prosecution, merely on
account of delay in the registration of the first information report.
18. No other submission, besides those noticed hereinabove, was
advanced at the hands of the learned counsel for the appellant. For the
reasons recorded hereinabove, we find no merit in this appeal. The same is
accordingly dismissed.
19. The accused-appellant Karthick was ordered to be released on bail
by this Court vide order dated 4.4.2008. He shall now be taken into
custody, to serve the remaining part of the sentence.


..................................J.
(P. Sathasivam)



..................................J.
(Jagdish Singh Khehar)

New Delhi;
July 1, 2013.
ITEM NO.1B COURT NO.8 SECTION IIA
(For Judgment)

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 601 OF 2008

KARTHI @ KARTHICK Appellant (s)

VERSUS

STATE REP BY INSP.OF POLICE, TAMIL NADU Respondent(s)

Date:01/07/2013 This Appeal was called on for judgment today.

For Appellant(s)
Mr. K.V. Vijayakumar,Adv.


For Respondent(s) Mr. M. Yogesh Kanna,Adv.
Ms. Sasi Kala,Adv.

Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P. Sathasivam and
His Lordship.
The appeal is dismissed in terms of the signed order.
"The accused-appellant Karthick was ordered to be released
on bail by this Court vide order dated 4.4.2008. He shall now be
taken into custody, to serve the remaining part of the sentence."



|(Mahabir Singh) | (Veena Khera) |
| Court Master | Court Master |


(Reportable signed judgment is placed on the file)


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