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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1149 OF 2008
RAJESH PATEL … APPELLANT
Vs.
STATE OF JHARKHAND … RESPONDENT
J U D G M E N T
V. Gopala Gowda, J.
This criminal appeal is directed against the
judgment of the High Court of Jharkhand at Ranchi
passed in Criminal Appeal No.58 of 1999 dated
14.11.2006 wherein it has confirmed the judgment
and order passed by the 1st Additional Sessions
Judge, Jamshedpur in S.T.No.168 of 1994/172 of
1995. By the said judgment, the appellant hereinPage 2
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was convicted under Section 376, I.P.C. and was
sentenced to undergo rigorous imprisonment for a
period of seven years.
2. The prosecution case in nutshell is stated
hereunder for the purpose of appreciating the rival
legal contentions urged in this appeal.
3. The prosecutrix in this case has made a
statement before the police at Ghatsila police
station, stating that she has narrated the incident
which took place on 14.2.1993 at 11.00 a.m. in the
house of the appellant. She stated that she was
working as a nurse in the Nursing Home of Dr.
Prabir Bhagat at Moubhandar in the jurisdiction of
Ghatsila, East Singhbhum District. The house of
the appellant Rajesh, who appears to be a classmate
of prosecutrix, is situated near the Nursing Home
in which the prosecutrix was working as a nurse.
It is the case of the prosecution that at the
request of the appellant she went to his house in
order to get back her book from him. As soon as she
entered the house of the appellant, he closed thePage 3
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door from inside. At that time the members of the
appellant’s family were not present inside the
house. When the prosecutrix tried to raise alarm,
she was terrorized by the appellant who threatened
her that she would be killed by a knife if she
raises alarm. Thereafter, the appellant committed
rape on her. When she felt pain on her private
part, she wanted to cry but she was silenced by the
appellant by displaying a knife to her. After
committing the offence of rape the appellant left
the house and locked the door from outside. After
half an hour, one Purnendu Babu of Chundih came and
unlocked the house and the prosecutrix returned to
her house silently. It is further the case of the
prosecution that she went to her house and narrated
the incident to her mother. However, the mother of
the prosecutrix remained silent for two to four
days on the assurance of Mr. Purnendu Babu that he
would take action in the matter. Additionally, it
was alleged that the appellant at the time of
committing the offence had also threatened thePage 4
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prosecutrix that she would be killed if she lodges
a complaint against him.
4. The trial court convicted the accused and
sentenced him to undergo imprisonment of seven
years. The correctness of the same was challenged
before the High Court of Jharkhand by filing
Criminal Appeal No.58 of 1999 urging various legal
contentions. After considering the legal
contentions on behalf of the appellant, the High
Court has affirmed the conviction and sentence of
the accused and dismissed the appeal. The
correctness of the same is challenged in this
appeal urging the following legal contentions: that
the courts below have failed to appreciate that the
sole testimony of the prosecutrix could not have
been used against the appellant to hold him guilty
of offence under Section 376, IPC; that the
prosecution has not examined either the doctor who
conducted the medical examination of the
prosecutrix or the investigating officer.Page 5
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Therefore, the finding of fact holding that the
appellant is guilty of the offence is erroneous in
law and liable to be set aside. Another ground
urged by Mr.Sanjay Hegde, the learned counsel for
the appellant, is that the courts below failed to
appreciate that the story of confinement of the
prosecutrix in the house of the appellant cannot be
sustained. This is because PW3 Purnendu Babu, a
common friend of the appellant and the prosecutrix,
who is alleged to have rescued the prosecutrix from
the alleged confinement, did not support the same,
thereby breaking the chain of events of the
prosecution story. Further, it is urged by him that
the courts below failed to note the delay in
lodging the FIR which has not been adequately
explained.
The Courts below have explained the
delay in filing FIR on the basis of the
intervention of PW3 and PW4, namely, Purnendu Babu
and the Doctor of the Nursing Home in which the
prosecutrix was working, as they assured the victim
to settle the matter between the parties. However,
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both of these witnesses were declared either
tendered by the prosecution or hostile during the
course of the trial.
Further, the appellant
contends that the learned courts below failed to
take into consideration of the serious
contradiction in the version of the prosecutrix and
her mother.
The prosecutrix in her cross
examination has stated that Dr. Prabir Bhagat – PW4
was in his chamber in the evening when the
appellant along with Purnendu Babu- PW3 went to the
Nursing Home whereas the mother of the prosecutrix
in her testimony has stated that the incident could
not be reported to Dr.Prabir Bhagat on the date of
the occurrence since the Doctor was in TATA.
According to the appellant, the courts below have
ignored the contradiction in the version of the
prosecutrix.
On one hand she says that she never
met the appellant till 21.2.93, on the other hand
she has stated that on the evening of the alleged
occurrence, she met the appellant at the dispensary
of Dr.Prabir Bhagat. It was further contended byPage 7
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the appellant regarding the prosecution explanation
that
she could not raise alarm when the house was
locked and offence was being committed on her as
she was threatened by the appellant with a knife is
improbable to believe her statement. This is
because she could have raised an alarm when the
appellant allegedly locked the prosecutrix inside
the house for half an hour after the appellant
committing offence of rape on her.
For all the
abovementioned grounds, the appellant’s counsel
contends that the conviction and sentence imposed
upon the appellant cannot be allowed to sustain.
5. Alternatively, the learned counsel contends
that if, the physical relationship between the
appellant and the prosecution is established, it
was a case of consensual sex. Both of them were
majors to enter into such alliance and they were
classmates and familiar with each other as well as
on visiting terms prior to the alleged occurrence
of offence. Therefore, the appellant has notPage 8
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committed offence as alleged. On the issue of
sentencing, the learned counsel has relied upon the
decision of this Court in the case of Ram Kumar v.
State of Haryana1, as the appellant in the present
case had already undergone the imprisonment of more
than 1 year and 8 months and more than 20 years
have elapsed from the date of commission of the
offence and therefore the appeal may be allowed by
passing appropriate order.
The prosecutrix and the
appellant are both married and settled in life and
further the appellant is of a young age. Therefore,
this Court may exercise its power by recording
special and adequate reasons as provided under
proviso to Section 376, IPC and the sentence
imposed may be reduced to the period already
undergone in judicial custody by the appellant and
treat the same as imprisonment and relief may be
granted to him to this extent as was observed in
Ram Kumar case (Supra), if the case urged on behalf
of the appellant is not acceptable.
1 (2006) 9 SCC 589
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6. On the other hand, the prosecution sought to
justify the concurrent findings of fact recorded by
the High Court and the Trial Court on the charge
against the accused. The learned counsel for
prosecution would contend that the Courts below,
while accepting the testimony of the prosecutrix
and her mother, have rightly convicted and
sentenced the accused to undergo imprisonment for
seven years and the same need not be interfered
with by this Court in this appeal in exercise of
its jurisdiction. Further, it is contended by the
learned counsel that the judgment referred to supra
by the appellant’s counsel is inapplicable to the
facts situation of the present case and therefore,
discretionary power of this court for reduction of
the sentence need not be exercised and prayed for
dismissal of this appeal.
7. With reference to the aforesaid rival legal
contentions urged on behalf of the parties, we havePage 10
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carefully examined the case to find out as to
whether the impugned judgment warrants interference
of this Court on the ground that the concurrent
finding of fact by the High Court on the charge
leveled against the appellant under Section 376,
IPC, and the finding recorded on this charge
against the appellant on the basis of the evidence
on record is erroneous in law and if so, whether it
requires interference of this Court in exercise of
its jurisdiction. The said points are answered in
favour of the appellant by assigning the following
reasons:
8. The prosecution case is that the appellant has
committed the offence of rape on the prosecutrix on
14.2.1993. She is the solitary witness to prove the
charge. The same is sought to be corroborated by
her mother PW2 who has supported the prosecution
case on the basis of narration of the alleged
offence by the prosecutrix to her. It is an
undisputed fact that both the appellant and thePage 11
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prosecutrix are class-mates and had good
acquaintance with each other as they were
exchanging books. The case of the prosecution is
that she had given her book to the appellant. She
asked him to return the same and he asked her to go
to his house on 14.2.93 to take back the book.
Accordingly, she went to the house of the
appellant. When she entered the house he locked the
door of the house from inside. At that time she
has not raised an alarm, except stating that she
insisted not to lock the door of the house as there
were no other inmates in the house at that point of
time. The version of the prosecutrix is that she
could not raise alarm as the appellant has
threatened her with knife. Further case of the
prosecution is that he had then committed offence
of rape on her. Further she has stated that while
the appellant was committing rape on her she got
pain in her private part at that point of time also
she wanted to raise alarm, but he has shown the
knife to her not to raise alarm. Thus, thePage 12
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prosecution story as narrated by the prosecutrix is
most improbable and unnatural. This contention of
the appellant is further supported by the
contention urged on his behalf that after the
offence was committed, the appellant locked her in
the house and went away from the house. After about
half an hour Mr.Purnendu Babu –PW3, who is a common
friend of both the appellant and the prosecutrix
came there and unlocked the room till then she did
not raise alarm drawing the attention of the
neighbours. The aforesaid circumstance would
clearly go to show to come to the conclusion that
the case of the prosecution is not natural and
probable. Neither the prosecutrix nor the PW3 has
informed the police with regard to the alleged
offence said to have committed by the appellant
after the prosecutrix was unlocked from the house.
The reason given by the prosecution is that PW3 was
making sincere efforts to bring about the
settlement of marriage between the appellant and
the prosecutrix. The same did not materialize and,Page 13
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therefore, the complaint was lodged with the
jurisdictional police on 25.2.93. The above said
version of PW1 regarding settlement between her and
the appellant is not proved as PW3 has stated in
his evidence that he does not know anything
regarding the alleged offence.
9. Further, there is an inordinate delay of nearly
11 days in lodging the FIR with the jurisdictional
police. The explanation given by the prosecutrix in
not lodging the complaint within the reasonable
period after the alleged offence committed by the
appellant is that she went to her house and
narrated the offence committed by the appellant to
her mother and on assurance of Purnendu Babu – PW3,
the mother remained silent for two to four days on
the assurance that he will take action in the
matter. Further, the explanation given by the
prosecutrix regarding the delay is that at the time
of commission of offence the appellant had
threatened her that in case she lodges anyPage 14
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complaint against him, she would be killed. The
said explanation is once again not a tenable
explanation. Further, the reason assigned by the
High Court regarding not lodging the complaint
immediately or within a reasonable period, it has
observed that in case of rape, the victim girl
hardly dares to go to the police station and make
the matter open to all out of fear of stigma which
will be attached with the girls who are ravished.
Also, the reason assigned by the trial court which
justifies the explanation offered by the
prosecution regarding the delay in lodging the
complaint against the appellant has been
erroneously accepted by the High Court in the
impugned judgment. In addition to that, further
observation made by the High Court regarding the
delay is that the prosecutrix as well as her mother
tried to get justice by interference of PW3, who is
a common friend of both of them and PW4, the Doctor
with whom the prosecutrix was working as a Nurse.
When the same did not materialize, after lapse ofPage 15
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11 days, FIR was lodged with the jurisdictional
police for the offence said to have been committed
by the appellant. Further, the High Court has also
proceeded to record the reason that prosecutrix had
every opportunity to give different date of
occurrence instead of 14.2.93 but she did not do it
which reason is not tenable in law. Further, the
High Court accepted the observation made by the
learned trial Judge wherein the explanation given
by the prosecutrix in her evidence about being
terrorized to be killed by the appellant in case of
reporting the matter to the police, is wholly
untenable in law. The same is not only unnatural
but also improbable. Therefore, the inordinate
delay of 11 days in lodging the FIR against the
appellant is fatal to the prosecution case. This
vital aspect regarding inordinate delay in lodging
the FIR not only makes the prosecution case
improbable to accept but the reasons and
observations made by the trial court as well as the
High Court in the impugned judgments are whollyPage 16
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untenable in law and the same cannot be accepted.
Therefore, the findings and observations made by
the courts below in accepting delay in lodging the
FIR by assigning unsatisfactory reasons cannot be
accepted by this Court as the findings and reasons
are erroneous in law.
10. Further in the case in hand, PW3, who is a
common friend of the appellant and the prosecutrix,
according to the prosecution case, he has
categorically stated that he does not know anything
about the case for which he had received the notice
from the court to depose in the case. PW4 has
stated in his evidence that the prosecutrix was
getting nursing training privately in his chamber
for the last three years as on the date of his
examination, namely, on 16.11.95. He has stated in
his examination-in-chief that on 14.2.93 when he
opened his chamber the prosecutrix came to his
chamber and further stated that her mother did not
tell him anything. He has been treated as hostile
by the prosecution, he was cross-examined by thePage 17
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prosecutor, in his cross-examination he has
categorically stated that he has told the police
that he does not know anything about the incident.
He has further stated that neither the prosecutrix
nor her mother told him about the incident and
further stated that he does not know anything about
the case.
11. Further, neither the Doctor nor the I.O. has
been examined before the trial court to prove the
prosecution case. The appellant was right in
bringing to the notice of the trial court as well
as the High Court that the non-examination of the
aforesaid two important witnesses in the case has
prejudiced the case of the appellant for the reason
that if the doctor would have been examined he
could have elicited evidence about any injury
sustained by the prosecutrix on her private part or
any other part of her body and also the nature of
hymen layer etc. so as to corroborate the story of
the prosecution that the prosecutrix suffered
unbearable pain while the appellant committed rapePage 18
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on her. Non-examination of the doctor who has
examined her after 12 days of the occurrence has
not prejudiced the case of the defence for the
reason that the prosecutrix was examined after 12
days of the offence alleged to have committed by
the appellant because by that time the sign of rape
must have disappeared. Even if it was presumed
that the hymen of the victim was found ruptured and
no injury was found on her private part or any
other part of her body, finding of such rupture of
hymen may be for several reasons in the present age
when the prosecutrix was a working girl and that
she was not leading an idle life inside the four
walls of her home. The said reasoning assigned by
the High Court is totally erroneous in law.
12. In view of the above statement of evidence of
PW3 and PW4 whose evidence is important for the
prosecution to prove the chain of events as per its
case, the statement of evidence of the aforesaid
witnesses has seriously affected the prosecution
case. Therefore, the courts below could not have,Page 19
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at any stretch of imagination, on the basis of the
evidence on record held that the appellant is
guilty of committing the offence under Section 376,
IPC. Further, according to the prosecutrix, PW3
who is alleged to have rescued her from the place
of occurrence of offence, has clearly stated in his
evidence that he does not know anything about the
incident in his statement thereby he does not
support the version of prosecution. The High Court
has erroneously accepted the finding of the trial
court that the appellant has not been prejudiced
for non-examination of the doctor for the reason
that she was working as a Nurse in the private
hospital of PW4 and being a nurse she knew that the
information on commission of rape is grave in
nature and she would not have hesitated in giving
the information to the police if the occurrence was
true. Further, the finding of the courts below that
non-examination of the I.O. by the prosecution who
has conducted the investigation in this case has
not caused prejudice to the case of the appellant,Page 20
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since the prosecution witnesses were unfavorable to
the prosecution who were either examined or
declared hostile by the prosecution, which
reasoning is wholly untenable in law. Therefore,
the finding and reasons recorded by both the trial
court as well as the High Court regarding nonexamination of the above said two witnesses in the
case has not prejudiced the case of the appellant
is totally an erroneous approach of the courts
below. For this reason also, we have to hold that
the findings and reasons recorded in the impugned
judgment that the trial court was justified in
holding that the prosecution has proved the charge
against the appellant and that he has committed the
offence on the prosecutrix, is totally erroneous
and the same is wholly unsustainable in law.
13. The finding with regard to the sentence of the
appellant recorded by the trial court which is
accepted by the High Court on the basis of the
solitary testimony of prosecutrix which is
supported by the evidence of her mother PW2 is oncePage 21
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again an erroneous approach on the part of the High
Court. The offence of rape alleged to have
committed by the appellant is established without
any evidence as the prosecution failed to prove the
chain of events as stated by the prosecutrix.
Since the evidence of PW3 & PW4 did not support the
prosecution case, but on the other hand, their
evidence has seriously affected the story of
prosecution. Therefore, the courts below could not
have found the appellant as guilty of the charge
and convicted and sentenced him for the offence of
rape.
14. Further, one more strong circumstance which has
weighed in our mind is that they had good
acquaintance with each other as they were classmates and
they were in terms of meeting with each
other.
The defence counsel had alternatively argued
that the appellant had sex with her consent.
The
High Court proceeded not to accept the said
argument by giving reasons that the appellant
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failed to explain as to under what circumstance he
had sex with the consent of the prosecutrix when
she was confined in his house. The contention
urged on behalf the appellant that it was
consensual sex with the prosecutrix is to be
believed for the reason that she herself has gone
to the house of the appellant though her version is
that she went there at the request of the appellant
to take back her book which she had given to him.
This is a strong circumstance to arrive at the
conclusion that the defence case of the appellant
is a consensual sex. Further, the prosecution case
is that after the offence was committed by the
appellant he had locked the room from outside and
left. After half an hour Purnendu Babu- PW3 arrived
and unlocked the room. This story is improbable to
believe and the prosecutrix has not lodged the
complaint either immediately or within reasonable
period from the date of occurrence. The complaint
was undisputably lodged after lapse of 11 days by
the prosecutrix.
In this regard, it is pertinent
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to mention the judgment of this Court in Raju v.
State of Madhya Pradesh2, the relevant paragraph of
which is extracted hereunder for better
appreciation in support of our conclusion:
“12. Reference has been made in Gurmit Singh case to
the amendments in 1983 to Sections 375 and 376 of the
Penal Code making the penal provisions relating to rape
more stringent, and also to Section 114-A of the Evidence
Act with respect to a presumption to be raised with regard
to allegations of consensual sex in a case of alleged rape.
It is however significant that Sections 113-A and 113-B
too were inserted in the Evidence Act by the same
amendment by which certain presumptions in cases of
abetment of suicide and dowry death have been raised
against the accused. These two sections, thus, raise a
clear presumption in favour of the prosecution but no
similar presumption with respect to rape is visualised as
the presumption under Section 114-A is extremely
restricted in its applicability. This clearly shows that
insofar as allegations of rape are concerned, the evidence
of a prosecutrix must be examined as that of an injured
witness whose presence at the spot is probable but it can
never be presumed that her statement should, without
exception, be taken as the gospel truth. Additionally, her
statement can, at best, be adjudged on the principle that
ordinarily no injured witness would tell a lie or implicate a
person falsely. We believe that it is under these principles
that this case, and others such as this one, need to be
examined.”
15. For the aforesaid reasons the prosecution case
is not natural, consistent and probable to believe
to sustain the conviction and sentence of the
2
(2008) 5 SCC 133
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appellant for the alleged offence said to have
committed by him.
16. The trial court as well as the High Court
should have appreciated the evidence on record with
regard to delay and not giving proper explanation
regarding delay of 11 days in filing FIR by the
prosecutrix and non-examination of complainant
witnesses, viz. the Doctor and the I.O. which has
not only caused prejudice to the case of the
appellant but also the case of prosecution has
created reasonable doubt in the mind of this Court.
Therefore, the benefit of doubt must enure to the
appellant. As we have stated above the testimony of
the prosecutrix is most unnatural and improbable to
believe and therefore it does not inspire
confidence for acceptance of the same for
sustaining the conviction and sentence. Therefore,
we are of the view that the impugned judgment
requires to be interfered with by this Court in
exercise of its jurisdiction. Accordingly, we
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allow the appeal and set aside the impugned
judgment.
17. If the appellant has executed the bail bonds,
the same may be discharged.
……………………………………………………………J.
[ CHANDRAMAULI KR. PRASAD ]
……………………………………………………………J.
[ V. GOPALA GOWDA ]
New Delhi,
March 15, 2013.Page 26
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