REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.2066-67 OF 2009
Narender Kumar …Appellant
Versus
State (NCT of Delhi) …Respondent
JUDGMENT
Dr. B.S. CHAUHAN, J.
1. These appeals have been preferred against the impugned judgment
and order dated 25.3.2009 passed by the High Court of Delhi at New
Delhi in Criminal Appeal No.53 of 2000, by which it has affirmed the
judgment and order of the trial Court dated 7.12.1999 passed in
Sessions Case No. 77/99, convicting the appellant under Section 376 of
Indian Penal Code, 1860 (hereinafter called ‘IPC’) and awarded the
punishment of rigorous imprisonment for a period of 7 years vide order
dated 8.12.1999 and imposed a fine of Rs.2000/- .
2. Facts and circumstances giving rise to this case are that:
A. Smt. Indira PW.1 (prosecutrix) filed an FIR No.886/98 dated
16.9.1998 to the effect that when she was going from village Khirki to
Chirag Delhi on that day at about 8 p.m., the appellant met her near
Ganda Nala, he caught hold of her hand and dragged her towards the
bushes on the edge of the road and committed rape on her. She could
not raise the noise due to fear. After commission of the offence, the
appellant left her there and ran away. The prosecutrix went to her
husband at his working place and from there went to the police station
alongwith her husband to lodge the FIR.
B. The prosecutrix was medically examined. Appellant was arrested
on 1.11.1998. Statement of the prosecutrix was recorded under Section
164 of Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.’)
on 20.11.1998 before the Metropolitan Magistrate, New Delhi. After
completion of investigation, charge sheet was filed against the
appellant under Section 376 IPC on 21.4.1999. Prosecution examined 11
witnesses in support of its case. The appellant, in addition to his
own statement under Section 313 Cr.P.C., also examined 2 witnesses in
defence.
C. On conclusion of the trial, the learned Sessions Court vide
judgment and order dated 7/8.12.1999 convicted the appellant for the
offences under Section 376 IPC and imposed the sentence as referred to
hereinabove.
D. Aggrieved, the appellant preferred Criminal Appeal No.53 of
2000 before the High Court which has been dismissed vide impugned
judgment and order dated 25.3.2009.
Hence, these appeals.
3. Shri Yakesh Anand, learned Amicus Curiae, has submitted that
Indira, prosecutrix (PW.1) cannot be relied upon because there have
been material contradictions in her deposition. She had been confronted
on large number of issues/facts with her statement under Section 161
Cr.P.C. Embellishments/improvements had been of such a large magnitude
that her statement itself became unreliable. The prosecutrix was an
unchaste woman, having illicit relationship with many young persons.
The courts below erred in not appreciating properly the evidence of the
defence witnesses examined by the appellant. The medical evidence, in
a case like this where the prosecutrix was married and 25 years of age,
is inconsequential. Thus, the appeals deserve to be allowed.
4. Per contra, Smt. Rekha Pandey, learned counsel appearing for
the respondent-State has opposed the appeal vehemently contending that
the appellant has rightly been convicted on the sole testimony of the
prosecutrix and both the courts below have appreciated the facts in
correct perspective. The findings so recorded by the courts below do
not warrant any interference. Thus, the appeals are liable to be
dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
6. The Trial Court as well as the High Court recorded conviction
of the appellant merely placing a very heavy reliance on the
deposition of the prosecutrix and considering the deposition of Dr.
Nisha (PW.9). Admittedly, the defence version taken by the appellant in
his statement under Section 313 Cr.P.C. and the deposition of two
defence witnesses to the extent that the prosecutrix had developed
intimacy with the appellant and some other young persons and Sahib Rao
(PW.3) her husband, had raised the grievance in this regard, have not
even been referred to by either of the courts below, though the law
required the court to appreciate the defence version and decide its
veracity in accordance with law.
7. In order to test the veracity of the deposition of Smt. Indira
–Prosecutrix (PW.1), it may be relevant to make reference to the same.
In her examination-in-chief she stated as under:
“The accused was not personally known to me prior to the day of
incident, except that he had teased me prior to the incident and
I lodged the complaint with the parents of the accused and with
the police. I have not given any copy of the complaint to the
police in this case. It is incorrect to say that the accused
had been living in my house about one year prior to the day of
the incident.”
In cross-examination she could not point out as which part of her
Salwar had been torn. Prosecutrix, when in the dock was confronted on
various points with her statement under Section 161 Cr.P.C. and the
said contradiction read as under:
(i) I had also told the police in my statement that I had raised
alarm at the time of rape.
(ii) The accused was not personally known to me prior to
the date of the incident except that he had teased me prior to the
incident and I lodged the complaint with the parents of the accused
and with the police.
So far as the “injury on her person” is concerned, she deposed
as under:
“I did not receive any injury except scratches on my throat and
I had told the doctor about the incident.”
8. Sahib Rao (PW.3), husband of the prosecutrix in his cross-
examination admitted that he knew the appellant very well as
both of them had been the residents of the same village. He
further admitted that there used to be quarrel between him and
his wife. Sahib Rao (PW.3), was also confronted with his
statement under Section 161 Cr.P.C. on various narrations.
9. Dr. Nisha (PW.9) deposed as under:
“There were nail marks on her breast and from that I say that
she might have been raped. The nail marks which were found on
the breast of the victim could have been self-inflicted….On
internal examination of the victim, it could not be found that
she was raped except seeing her condition that her clothes were
torn and there were nail marks on her breast.”
(Emphasis added)
10. SI, Lekh Raj (PW.6) who was posted at P.S. Malviya Nagar, New
Delhi was examined and he deposed as under:
“On the night intervening 30.10.1998 and 1.11.1998 , complainant
Indira came to the P.S. at about 11.45 p.m. She told me that the
person who had committed rape on her is sitting on a stop of
Khirki. Thereafter, I alongwith complainant and Constable Jagat
Singh went there and accused present in court was arrested on
the pointing out of Indira by me…..The arrest memo of accused
Ex.PW.1/F was also prepared…..
…………No public person from the area was called from where the
accused was arrested. I did not prepare the site plan of the
place from where the accused was arrested. The prosecutrix
Indira had come to me on that night in the police station alone.
The distance between the house of the prosecutrix and police
station is 3 Kms.”
11. R.N. Chowdhary (PW.11), Investigating Officer deposed that
there was fencing just near the road and there was electricity pole
installed at the divider of the road and the electricity was on. The
residential houses were at some distance and the road was situated at a
distance of about 20 paces from the place of occurrence.
12. The appellant in his statement under Section 313 Cr.P.C. stated
as under:
“I was having good relations with family of the prosecutrix and
we were staying in the same village. The prosecutrix desired
to keep me in her house, to which I refused and for that reason,
the false case has been planted on me. I am innocent and I have
been falsely implicated in this case by police at the instance
of the prosecutrix and her husband as I did not accept the
proposal of the prosecutrix to live in her house. Her husband
has also given severe beatings to the prosecutrix on that
account.” (Emphasis added)
13. Chandan Singh (DW.1) was examined by the appellant in defence
who deposed that he knew Indira (Prosecutrix) and her husband being
their neighbour. The prosecutrix was having intimacy with the
appellant for the last 3 years. His house is at a distance of 40 yards
from the house of the prosecutrix. There remained quarrel between
prosecutrix and her husband. Her husband Sahib Rao (PW.3) did not like
the entry of appellant in his house.
14. Surendra Kumar (DW.2) supported the defence version stating as
under:
“I know Sahib Rao and his wife Indira. Sahib Rao had been
working in my ration shop for last 7 years. Sahib Rao used to
tell me that one boy whose name I do not know used to visit the
house of Sahib Rao which was not liked by him and for that
reason the husband and wife had been quarreling. The said boy,
who is present in the court had come to my shop also alongwith
Indra.”
15. If the evidence on record referred to hereinabove is
appreciated, the following picture emerges:
(i) Prosecutrix and appellant were known to each other for a long
time and there had been some relationship/intimacy between them.
(ii) Sahib Rao (PW.3), husband of the prosecutrix did not like the
said relationship.
(iii) There has been some incident two-three days prior to the actual
incident on 16.9.1998 as Indira-prosecutrix had lodged some complaint
against the appellant in the police as well as with the parents of the
appellant.
(iv) The complaint lodged by the prosecutrix two-three days prior to
16.9.1998 with the police had never been placed on record.
(v) The alleged incident dated 16.9.1998 had occurred on the side
of the main road which remains busy and had sufficient light and in
spite of the fact that the prosecutrix raised hue and cry, nobody came
to help her.
(vi) There are contradictions on the issue as to whether the
prosecutrix went to the working place of her husband and from there she
proceeded to police station with him as evidence on record is also to
the contrary i.e she straightaway went to the police station and one
Constable had gone and called her husband.
vii) Medical evidence does not positively support the case of the
prosecution as Dr. Nisha (PW.9) deposed that seeing her
condition and torn clothes it could be said that the prosecutrix
might had been raped.
viii) Admittedly, there is a most material contradiction in the
medical evidence and ocular evidence. Dr. Nisha (PW.9) had
categorically recorded in the report and deposed in the court
that the prosecutrix was having nail marks on her breast though
the case of Indira-prosecutrix had been that she was having
nail marks on her throat.
(ix) Deposition of Lekh Raj (PW.6), S.I., about the arrest of the
appellant between intervening night of 30.10.1998 and 1.11.1998 at
about 11.45 p.m., seems to be improbable. According to him, the
prosecutrix walked from her house to the police station at a distance
of 3 Kms. at midnight to inform the police that the appellant was
sitting on the stop of Khirki, Press Enclave. The witness reached there
with prosecutrix and police constables. He found the appellant
sitting at the said stop and from there he was arrested. The witness
did not prepare the arrest memo with the help of any independent
witness. If the appellant was sitting at the bus stop at midnight some
other persons could have been also there.
(x) The defence version taken by the appellant and depositions of
Chandan Singh (DW.1) and Surendra Kumar (DW.2) in support thereof,
have not only been ignored/brushed aside by the courts below rather no
reference has been made to the same.
(xi) The contradictions referred to hereinabove and particularly in
respect of the nail marks on her body could not be said only to be
minor contradictions which did not go to the root of the matter. Some
of the contradictions/embellishments/improvements are of greater
magnitude and had serious impact on the case.
(xii) The F.S.L. report dated 6.5.1999 reveal that the blood
stains/semen on the prosecutrix kurta/ salwar belonged to the AB blood
group though the blood group of the appellant is “O”(+) and thus, the
FSL report does not support the case of the prosecution.
16. It is a settled legal proposition that once the statement of
prosecutrix inspires confidence and is accepted by the court as such,
conviction can be based only on the solitary evidence of the
prosecutrix and no corroboration would be required unless there are
compelling reasons which necessitate the court for corroboration of her
statement. Corroboration of testimony of the prosecutrix as a condition
for judicial reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. Minor contradictions
or insignificant discrepancies should not be a ground for throwing out
an otherwise reliable prosecution case. A prosecutrix complaining of
having been a victim of the offence of rape is not an accomplice after
the crime. Her testimony has to be appreciated on the principle of
probabilities just as the testimony of any other witness; a high degree
of probability having been shown to exist in view of the subject matter
being a criminal charge. However, if the court finds it difficult to
accept the version of the prosecutrix on its face value, it may search
for evidence, direct or substantial, which may lend assurance to her
testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. &
Anr., AIR 2003 SC 818; and Vishnu v. State of Maharashtra, AIR 2006 SC
508).
17. Where evidence of the prosecutrix is found suffering from
serious infirmities and inconsistencies with other material,
prosecutrix making deliberate improvements on material point with a
view to rule out consent on her part and there being no injury on her
person even though her version may be otherwise, no reliance can be
placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of
Maharashtra, (1999) 1 SCC 220)
18. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14
SCC 534, this Court while dealing with the issue held:
“The only evidence of rape was the statement of the prosecutrix
herself and when this evidence was read in its totality, the
story projected by the prosecutrix was so improbable that it
could not be believed.”
19. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC 858,
this Court held that ordinarily the evidence of a prosecutrix should
not be suspected and should be believed, more so as her statement has
to be evaluated on par with that of an injured witness and if the
evidence is reliable, no corroboration is necessary. The court
however, further observed:
“…….It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also be
protected against the possibility of false implication….. there
is no presumption or any basis for assuming that the statement
of such a witness is always correct or without any embellishment
or exaggeration.”
20. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC
566, this Court held has under:
“It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to hold
that this evidence has to be accepted even if the story is
improbable and belies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a
criminal matter.”
21. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference of the victim
being a woman of “easy virtues” or a women of “loose moral character”
can be drawn. Such a woman has a right to protect her dignity and
cannot be subjected to rape only for that reason. She has a right to
refuse to submit herself to sexual intercourse to anyone and everyone
because she is not a vulnerable object or prey for being sexually
assaulted by anyone and everyone. Merely because a woman is of easy
virtue, her evidence cannot be discarded on that ground alone rather it
is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v.
Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v. Gurmit
Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus &
Anr., AIR 2005 SC 1248).
22. In view of the provisions of Sections 53 and 54 of the Evidence
Act, 1872, unless the character of the prosecutrix itself is in issue,
her character is not a relevant factor to be taken into consideration
at all.
23. The courts while trying an accused on the charge of rape, must
deal with the case with utmost sensitivity, examining the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the evidence of witnesses which are not
of a substantial character.
However, even in a case of rape, the onus is always on the
prosecution to prove, affirmatively each ingredient of the offence it
seeks to establish and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why in a rape case the
victim and other witness have falsely implicated the accused.
Prosecution case has to stand on its own legs and cannot take support
from the weakness of the case of defence. However great the suspicion
against the accused and however strong the moral belief and conviction
of the court, unless the offence of the accused is established beyond
reasonable doubt on the basis of legal evidence and material on the
record, he cannot be convicted for an offence. There is an initial
presumption of innocence of the accused and the prosecution has to
bring home the offence against the accused by reliable evidence. The
accused is entitled to the benefit of every reasonable doubt. (Vide:
Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday
v. State of Karnataka, AIR 2003 SC 1639).
24. Prosecution has to prove its case beyond reasonable doubt and
cannot take support from the weakness of the case of defence. There
must be proper legal evidence and material on record to record the
conviction of the accused. Conviction can be based on sole testimony
of the prosecutrix provided it lends assurance of her testimony.
However, in case the court has reason not to accept the version of
prosecutrix on its face value, it may look for corroboration. In case
the evidence is read in its totality and the story projected by the
prosecutrix is found to be improbable, the prosecutrix case becomes
liable to be rejected.
The court must act with sensitivity and appreciate the evidence
in totality of the background of the entire case and not in the
isolation. Even if the prosecutrix is of easy virtue/unchaste woman
that itself cannot be a determinative factor and the court is required
to adjudicate whether the accused committed rape on the victim on the
occasion complained of.
25. The instant case is required to be decided in the light of the
aforesaid settled legal propositions.
We have appreciated the evidence on record and reached the
conclusions mentioned hereinabove. Even by any stretch of imagination
it cannot be held that the prosecutrix was not knowing the appellant
prior to the incident. The given facts and circumstances, make it
crystal clear that if the evidence of the prosecutrix is read and
considered in totality of the circumstances alongwith the other
evidence on record, in which the offence is alleged to have been
committed, we are of the view that her deposition does not inspire
confidence. The prosecution has not disclosed the true genesis of the
crime. In such a fact-situation, the appellant becomes entitled to the
benefit of doubt.
In view of above, the appeals succeed and are allowed. The
judgment and order dated 25.3.2009 passed by the High Court of Delhi in
Criminal Appeal No. 53 of 2000 and that of the trial court dated
7.12.1999 are hereby set aside. The appellant is on bail, his bail bond
stands discharged.
Before parting with the case, we would like to record our
appreciation to Mr. Yakesh Anand, learned Amicus Curiae for rendering
commendable assistance to the court. Mr. Anand shall be entitled to Rs.
7,000/- as his fees payable by the State Government.
..……………………….J.
(Dr. B.S. CHAUHAN)
.
………………………..J.
(DIPAK MISRA)
New Delhi,
May 25, 2012
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