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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 352 OF 2006
State of Haryana …..Appellant
Versus
Basti Ram …..Respondent
J U D G M E N T
Madan B. Lokur, J.
1. The question for our consideration is
whether the High
Court erred in not taking into account the statement and
testimony of H.L. that the respondent had raped her on
several occasions and thereby acquitting him. In our
opinion, the High Court committed an error of law in not
considering the evidence put forward by the prosecutrix
(who was less than 16 years when she was raped) and
ignoring the settled position in law that if the sole
testimony of the prosecutrix is credible, a conviction can
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be based thereon without the need for any further
corroboration.
The facts:
2. On 12th March 1990, PW-3 Sardara Singh, a resident of
Village Farmana, lodged a complaint with PW-1 ASI Mehar
Singh of Police Station Kharkhoda to the effect that his
granddaughter H.L. aged about 14-15 years and staying
with him had been missing since 8.00 p.m. on 27th
February 1990. According to the complainant, H.L. had left
the house for answering the call of nature but did not
come back. Efforts were made to trace her out, including
at the residence of relatives and at her parental home in
Nainital but without success. The complaint of Sardara
Singh further stated that he suspected that Mohinder
Singh and Satte had enticed her away.
3. The complaint was registered as a First Information Report
and investigations commenced to trace out H.L.
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4. On 20th March 1990 the investigating officer examined
Mohinder Singh and he stated that on 27th February 1990
he and Satte took H.L. from Village Farmana to the
Interstate Bus Terminal in Delhi. Their intention was to sell
her to somebody through Satte and then to equally divide
the proceeds. As a consequence of this, Satte took H.L. to
Bareilly and sold her to Jamaluddin.
5. It appears that Sardara Singh had wrongly (and perhaps
deliberately) accused Mohinder Singh of enticing away
H.L. and even Mohinder Singh had given a false
statement.
6. Be that as it may on 6th April 1990, PW-22 ASI Jaidev Singh
located H.L. and her father and on 7th April 1990 H.L. was
produced before the Judicial Magistrate Ist Class, Sonepat
where her statement was recorded under Section 164 of
the Criminal Procedure Code (for short the Cr.P.C.).
7. In her statement given before the Judicial Magistrate, H.L.
stated that her father worked in Nainital. Her maternal
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uncle Satish Prakash who got her admitted in a school at
Bhainswal sometime in June 1989 had brought her to
Village Farmana.
8. Satish Prakash used to take H.L. to her school every
morning on his scooter. From sometime in August 1989
he started misbehaving with her. She complained about
the misbehaviour to her grandmother and to her aunt
(wife of Satish Prakash) but to no effect. In her statement
H.L. stated that from September 1989 onwards Satish
Prakash began to rape her and did so several times. He
was subsequently transferred to Panipat but in the
meanwhile Basti Ram (the Respondent before us) came to
Bhainswal and joined a Veterinary Hospital. H.L. further
stated that apart from Satish Prakash, she was also raped
by Basti Ram and fed up with this unpleasant situation,
she expressed a desire to go back to her parental home at
Nainital.
9. H.L. then stated that on 27th February 1990 Satish Prakash
and Basti Ram confined her in a quarter near the
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Veterinary hospital where they were working and they
raped her several times. Eventually on 8th March 1990
she was taken by them to Delhi and handed over to two
persons who were going to Nainital with the instructions
that she should be dropped off at her parental home.
10. In her statement H.L. stated that when she went to
her parental home she found that it was locked and
therefore from 9th March 1990 to 20th March 1990 she
lived with a neighbor, PW-19 Ram Singh who informed her
father in Pant Nagar of her arrival in Nainital. On 21st
March 1990 the lock of her parental home was broken and
she lived there till 4th April 1990 and came to Delhi along
with her father on 6th April 1990.
11. Upon completion of investigations, the police
authorities filed a charge sheet and on 3rd August 1990
the case was committed to the Sessions Court and
registered as Sessions Case No. 22 of 6.11.1990/Sessions
Trial No. 30 of 1990 before the Additional Sessions Judge,
Sonepat (Haryana).
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Proceedings in the Trial Court:
12. The Additional Sessions Judge charged Satish
Prakash and Basti Ram for offences punishable under
Sections 366, 376, 363, 506 and 342 of the Indian Penal
Code (for short the IPC) on 7th November 1990 to which
they pleaded not guilty. It appears that the charge of
raping H.L. prior to 27th February 1990 was inadvertently
left out and therefore additional charges were framed
against Satish Prakash and Basti Ram to include the
commission of rape of H.L. prior to 27th February 1990.
The two accused pleaded not guilty to the additional
charges also.
The charges framed read as follows:
1. That you both on 27.2.90 in the area of Vill.
Bhainswal Kalan kidnapped Kumari H.L. aged
15/16 years, a minor by taking her out of legal
guardianship of her maternal grandfather Sh.
Sardara Ram S/o Jai Pal R/o Farmana with intent
that she may be forced or seduced to illicit
intercourse and thereby committed an offence
punishable u/s 366 IPC and within cognizance of
this Court.
2. Secondly, you both, between 27.2.90 to 08.3.90, in
the aforesaid area committed rape on the above
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named H.L. by committing sexual intercourse
against her will or consent and thereby committed
an offence punishable u/s 376 IPC and within
cognizance of this Court.
3. Thirdly, you both on the aforesaid date kidnapped
Kumari H.L. a minor under the age of 18 years
from the lawful guardianship of her maternal
grandfather Sardara Ram and thereby committed
an offence punishable u/s 363 IPC and within
cognizance of this Court.
4. Fourthly, you both on same date and place
committed criminal intimidation by threatening
H.L. to cause death and thereby committed
offence punishable u/s 506 IPC and within
cognizance of this Court.
5. Fifthly, you both on the same date and place
wrongly confined H.L. in Govt. Quarter of
Veterinary Hospital Bhainswal Kalan from 27.2.90
to 08.3.90 and thereby committed an offence
punishable u/s 342 IPC and within cognizance of
this Court.
6. Sixthly that you accused Satish Kumar committed
rape on aforesaid H.L. by committing sexual
intercourse against her will or consent several
times from September, 1989 to February, 1990 at
your house in the area of village Farmana and
thereby committed an offence punishable under
Section 376 I.P.C. and within cognizance of this
Court.
7. Seventhly, that you accused Basti Ram committed
rape on aforesaid H.L. against her consent or will
several times between October, 1989 and
February, 1990 in Veterinary Hospital quarter
Bhainswal and thereby you committed an offence
punishable under Section 376 I.P.C. and within
cognizance of this Court.
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13. The prosecution examined as many as 24
witnesses while the defence examined one witness.
14. The Trial Court first of all considered the issue
regarding the age of H.L. It was noted that her birth
certificate Exhibit PF gave her date of birth as 10th June
1974 but the school record as well as the evidence of one
of the teachers in the school in Bhainswal indicated that
her date of birth was 27th June 1975. The father of the
prosecutrix gave her date of birth as 10th June 1974 while
her mother gave the date of birth as 27th June 1975.
However, on an appreciation of the evidence and relying
upon the birth certificate Exhibit PF the Trial Court
concluded that the date of birth of H.L. was 10th June
1974. Therefore, when she was raped between
September 1989 and March 1990 she was below 16 years
of age.
15. The Trial Court then considered the issue of the
improbability of H.L. having been raped by Satish Prakash
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and Basti Ram. The Trial Court was of the view that the
statement of the prosecutrix was credible. She had
complained to her grandmother and to her aunt about
being raped by Satish Prakash and Basti Ram, but it had
no effect on them. As such, she had little or no option but
to submit to the demands of Satish Prakash and Basti
Ram. The Trial Judge held that in any case since H.L. was
below 16 years of age her consent to have sexual
intercourse with Satish Prakash and Basti Ram was
meaningless.
16. On the basis of these findings the Trial Judge
concluded that Satish Prakash and Basti Ram had
subjected H.L. to rape and gang rape.
17. On the issue whether Satish Prakash had
kidnapped H.L., the Trial Judge concluded that H.L. was
under the guardianship of her grandfather Sardara Singh
and since Satish Prakash had taken her away from the
lawful guardianship of her grandfather, he was guilty of
kidnapping her. As such, it was held that Satish Prakash
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was guilty of an offence punishable under Sections 363
and 366 of the I.P.C. Basti Ram was, however, found not
guilty of the charge of kidnapping H.L.
18. The Trial Judge considered the statement of PW-3
Sardara Singh and found that he was related to both
Satish Prakash and Basti Ram. In fact Satish Prakash is
his nephew (brother’s son) while Basti Ram is the cousin
of Satish Prakash. Under these circumstances, Sardara
Singh tried to save Satish Prakash and Basti Ram from
being involved in the kidnapping and rape of H.L. and he
also went to the extent of cooking up a story to implicate
Mohinder Singh and Satte. In these circumstances, the
Trial Judge did not give weightage to the evidence of
Sardara Singh and relied primarily on the testimony of
H.L. as well as the statement that she gave before the
Magistrate under Section 164 of the Cr.P.C.
19. The Trial Judge also considered some letters said
to have been written by H.L. to Mohinder Singh professing
intimacy with him but the prosecution version was
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accepted that these letters were written at the instance of
Satish Prakash so as to put the blame on Mohinder Singh.
20. The defence witness DW-1 Dr. S.S. Wadhwa was
disbelieved by the Trial Judge on the question of the age
of the prosecutrix. According to this witness, H.L. was
between 16 and 17 years of age, but he did not have the
original medical report on the basis of which he had come
to this conclusion.
21. In their statement under Section 313 of the Cr.P.C.
the accused stated that H.L. was a girl of ‘bad character’
and that they had been falsely implicated at the instance
of the investigating agency.
22. After going through the evidence on record, the
Additional Sessions Judge, Sonepat by a judgment and
order dated 1st April 1992 convicted Satish Prakash and
Basti Ram of having committed gang rape on H.L. from
27th February 1990 to 8th March 1990. Satish Prakash was
also found guilty of having raped H.L. from September
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1989 to February 1990. Basti Ram was found guilty of
having raped H.L. from October 1989 to February 1990.
Both the accused were also found guilty of offences
punishable under Sections 366, 342 and 506 of the IPC.
23. Subsequently by an order dated 3rd April 1992
Satish Prakash and Basti Ram were sentenced under
Section 376(2)(g) of the IPC to 10 years rigorous
imprisonment for the gang rape of H.L. They were also
asked to pay a fine of Rs.2,000/- and in default thereof to
undergo further rigorous imprisonment for one year. For
the remaining offences, they were sentenced to various
terms of imprisonment, but all sentences were to run
concurrently and, therefore, we are not going into the
details of the punishment awarded.
Proceedings in the High Court:
24. Feeling aggrieved by the conviction and sentence,
both the convicts preferred an appeal in the High Court of
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Punjab and Haryana, being Criminal Appeal No. 162-
SB/1992.
25. The High Court examined the evidence in a rather
cursory manner and after noting the contentions urged by
learned counsel for the parties, the High Court held as
follows:
“After going through the contention of learned
counsel for both the parties, I am of the opinion
that ASI Jai Dev PW 22 has admitted that he
recorded the statement of Mohinder who has
stated that he and Sat Narain had enticed away
H.L. and, thereafter, sent her to Bareli with
somebody else and that he can get H.L. recovered.
In Ex.D1 H.L. has clearly written to Mohinder that
she was absent from School for four days while
accompanying Mohinder to Delhi and she also
admitted that she has been questioned by Satish
Kumar appellant and her maternal grandfather
and grand-mother with regard to absence for four
days. Satish also reprimanded her that she had
been missing for four days without disclosing her
whereabouts and he would stop her from going to
School and send her to her father’s house after
performing betrothal to some boy. In letter Ex. D8
also she has named Dr. Satya asking help from
him for making a programme in the day time as it
is difficult to come out of the house at night.
Taking the totality of facts and the circumstances
of the case into consideration the above evidence
casts heavy doubt on the prosecution version and
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does not inspire any confidence. Therefore, I have
no option but to accept this appeal and acquit
both the appellants of the charges framed against
them after setting aside the order of conviction
and sentence passed by the Trial Court. Bail
bonds tendered before the trial Court stand
discharged.”
26. On the above basis, the learned Single Judge
allowed the appeal and set aside the conviction of Satish
Prakash and Basti Ram.
27. The State of Haryana has challenged the judgment
and order passed by the learned Single Judge of the High
Court.
Discussion and conclusion:
28. During the pendency of the appeal before us,
Satish Prakash expired and the appeal only survives as
against Basti Ram.
29. The law on the issue whether a conviction can be
based entirely on the statement of a rape victim has been
settled by this Court in several decisions. A detailed
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discussion on this subject is to be found in Vijay @
Chinee v. State of Madhya Pradesh, (2010) 8 SCC
191. After discussing the entire case law, this Court
concluded in paragraph 14 of the Report as follows:-
“Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix if found to
be worthy of credence and reliable, requires no
corroboration. The Court may convict the accused on
the sole testimony of the prosecutrix.”
This decision was recently adverted to and followed in
State of Rajasthan v. Babu Meena, 2013 (2) SCALE
479.
30. A reading of the judgment and order of the High
Court indicates that it has not discussed the statement of
H.L. under Section 164 of the Cr.P.C. before the Magistrate
nor her testimony before the Trial Judge. On going through
her statement recorded by the Magistrate, we find that it
is rather detailed and the least that was expected of the
High Court was to consider that statement. If it was found
to be not credible, the High Court was entitled to reject it
and also her testimony before the Trial Judge. But, to
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completely ignore what the prosecutrix had said, merely
on the basis of a handful of letters which she had written
(even though she had explained the circumstances in
which she had written those letters) is a rather
unsatisfactory way of dealing with the entire case.
31. Normally, we would have gone through the entire
evidence on record and decided whether the acquittal of
Basti Ram should be sustained or not. However, in the
absence of any discussion or analysis of the evidence by
the High Court in first appeal, we are of the opinion that a
right of appeal available to Basti Ram would be taken
away if we were to consider the case on its merits without
the opinion of the High Court. Additionally, for a proper
appreciation of the case, it is necessary for us to have the
views of the High Court on record. This is important since
the High Court has reversed a finding of conviction given
by the Trial Judge.
32. Under the circumstances, the more appropriate
course of action would be to set aside the impugned
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judgment and order passed by the High Court and remand
the matter for reconsideration on merits after taking into
account the entire evidence on record, including the
statement and testimony of H.L. as well as the law on the
subject. We do so accordingly.
33. Since the allegation of rape is of the year 1989-
1990, we request the High Court to accord high priority to
the disposal of the case.
34. Appeal is disposed of.
..……………………..J.
(A.K. Patnaik)
..……………………..J.
(Madan B. Lokur)
New Delhi;
April 02, 2013
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