Hon'ble Mr. Justice K.M. Joseph
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2393 OF 2010
PARKASH CHAND ...APPELLANT(S)
VERSUS
STATE OF HIMACHAL PRADESH ...RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.
1. This is a criminal appeal by special leave
challenging the order dated 11.5.2010 passed by the
High Court of Himachal Pradesh at Shimla in Criminal
Appeal No.615 of 2002 affirming the conviction of the
appellant under Sections 376 and 506 of the Indian
Penal Code. In short, the case of the prosecution is
as follows:
In December, 1999, the appellant committed rape upon
P.W.2. It is also the further case that P.W.2 was
intimidated by the appellant and another co-accused.
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The appellant was charged under Sections 376 and 506
IPC read with Section 34 of the Indian Penal Code
and co-accused was charged under Section 506 read
with Section 34 of the IPC. The trial Court found
the case in favour of the prosecution and after
convicting the appellant and co-accused sentenced
the appellant to simple imprisonment for 7 years and
a fine of Rs.10,000/- with default sentence for the
offence punishable under Section 376 of the IPC. He
was also sentenced for 2 years for the offence
punishable under Section 506 IPC. Both the
sentences were to run concurrently. The co-accused
stands acquitted by the High court whereas the
appeal filed by the appellant was unsuccessful.
2. We heard learned counsel for the parties. The
learned counsel for the appellant would point out that
PW2, the prosecutrix was above the age of 16 years.
Learned counsel for the appellant would seek to
extricate the appellant from culpability on the score
that the case of the prosecutrix is based on the FIR
which is lodged 7 months after the alleged commission
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of the rape. There is delay of 7 months in lodging the
FIR just as in the case of Vijayan v. State of Kerala
2008 (14)SCC 763. In this case also the prosecutrix
was pregnant at the time of filing the complaint. The
FIR was filed on 17.7.2000. whereas the incident is
alleged to have taken place in December, 1999. He
points out that it is allegedly filed after the
prosecutrix told PW1 who accompanied her to Deputy
Commissioner Office, Chamba. It is pointed out that
according to the prosecution on 17.7.2000 when she came
to Chamba to get medicines, she allegedly disclosed the
incident to PW1 and appellant has been implicated
thereafter. It is the case of the appellant that P.W.1
is a resident of the same village and that P.W.1 has
spoken about having met the prosecutrix even earlier
but nothing about the alleged rape was disclosed.
3. Per contra, the learned counsel for the respondentState would point out that there was ample evidence in
the form of testimony of the prosecutrix. Besides that
learned counsel also drew our attention to the evidence
of PW4 before whom the appellant himself made an extra
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judicial confession. So also attention was drawn to
the evidence of PW5.
4. PW5 has also deposed that the appellant requested
him with folded hands for compromise as he has
committed wrong with PW2, the prosecutrix and he wanted
to keep her and her child as his own.
5. The first question we have to consider is the
impact of delay of nearly 7 months in lodging the
complaint with the police. The appellant seeks support
mainly from the judgment of this Court in the case of
Vijayan v. State of Kerala 2008 (14)SCC 763. The High
court in the impugned judgment has on the other hand
relied upon the judgment of this Court reported in
State of Himachal Pradesh v. Shree Kant Shekari AIR
2004 SC 4404. Therein, this Court has essentially
relied upon the principles about the impact of delay as
noticed by it in the judgment of this Court in
Tulshidas Kanolkar v. State of Goa reported in 2003 (8)
SCC 590 wherein rape was committed on a girl whose
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mental ability was undeveloped. This is what the court
had to say about the fact of delay.
“……………In any event, delay per se is not
a mitigating circumstance for the
accused when accusations of rape are
involved. Delay in lodging the first
information report cannot be used as a
ritualistic formula for discarding
prosecution case and doubting its
authenticity. It only puts the court on
guard to search for and consider if any
explanation has been offered for the
delay. Once it is offered, the Court is
to only see whether it is satisfactory
or not. In a case if the prosecution
fails to satisfactorily explain the
delay and there is possibility of
embellishment or exaggeration in the
prosecution version on account of such
delay, it is a relevant factor. On the
other hand, satisfactory explanation of
the delay is weighty enough to reject
the plea of false implication or
vulnerability of prosecution case. As
the factual scenario shows, the victim
was totally unaware of the catastrophe
which had befallen her. That being so,
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the mere delay in lodging of the first
information report does not in any way
render prosecution version brittle.”
6. In Vijayan case (supra) the prosecutrix who was
aged about 17 years was the neighbor of the accused.
In her testimony the prosecutrix set up the case that
accused has raped her when no one else was there in the
house and she was raped in the house. The accusedappellant was alleged to have been told that she need
not worry as he will marry her. She did not give any
complaint either to her parents and police in view of
the promise. She became pregnant and while she was
carrying a child of 7 months, she requested the accused
to marry her. The accused declined. Thereafter a
complaint was filed after 7 months. On these facts
this court noted that no complaint or grievance was
made either to the police or the parents thereto. The
explanation for delay in lodging the FIR was noted
namely that the accused promised to marry her and
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therefore the FIR was not filed. The Court held as
follows:
“…………In cases where the sole testimony of
the prosecutrix is available, it is very
dangerous to convict the accused, specially
when the prosecutrix could venture to wait
for seven months for filing the FIR for
rape. This leaves the accused totally
defenceless. Had the prosecutrix lodged
the complaint soon after the incident,
there would have been some supporting
evidence like the medical report or any
other injury on the body of the prosecutrix
so as to show the sign of rape. If the
prosecutrix has willingly submitted herself
to sexual intercourse and waited for seven
months for filing the FIR it will be very
hazardous to convict on such sole oral
testimony. Moreover, no DNA test was
conducted to find out whether the child was
born out of the said incident of rape and
that the appellant-accused was responsible
for the said child. In the face of lack of
any other evidence, it is unsafe to convict
the accused.”
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7. In the case of Kaini Rajan v. State of Kerala
reported in 2013 (9) SCC 113, on 17.9.1997 at about
8.30 a.m. it was alleged the prosecutrix was raped at a
site which was by the side of a public road. It was
the case of the prosecutrix that she tried to make hue
and cry but was silenced by the accused by stating that
he would marry her. Even after this incident he had
sexual intercourse on more than one occasion. The
prosecutrix became pregnant, gave birth to a child and
accused did not keep his promise to marry her. It is
thereafter that on 26.7.1998 nearly 10 months after the
alleged rape that a case was registered. This Court
referred the Vijayan’s case (supra), took note of the
place being on the side of a public road, the aspect of
delayed filing of the report and also the behavior of
the parents of the prosecutrix in not approaching the
family members of the accused for marrying the
prosecutrix and instead lodging the report. The Court
also found that having regard to the site, if the
prosecutrix has made any resistance or made hue and cry
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it would have attracted large number of people from the
locality. The appeal filed by the accused was allowed.
8. It is in the background of the aforesaid principle
that we must examine the question. P.W. 2 prosecutrix
has undoubtedly stated that her parents had died and
she was left without any brother and sister. She was
brought up by her uncle and aunt. She studied upto 9th
class. On 5.12.1999 while she was coming back at about
5-6 p.m. the appellant who is also the resident of the
same village and who is related to her as brother in
village relation caught hold of her and started
dragging her towards the lonely place in the bushes and
committed rape. She raised hue and cry but nobody was
there at the place of occurrence. The appellant showed
her knife and threatened her to do away with her life
in case she disclose the incident to anybody. She
stated that she was so frightened and ashamed due to
which she did not disclose the incident to anyone.
After staying with her maternal grandmother when she
came back she knew about becoming pregnant. Her aunt
enquired about her womb looking bigger and she told her
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about the incident. Aunt sent her to the home of her
maternal grandmother. The incident came to be
disclosed by her aunt to P.W.4 who is also maternal
uncle of the prosecutrix. A ‘baradari’ was called.
She was also present. The appellant though called, did
not appear. On 9.7.2000, persons including P.W.4 and
appellant came there and the latter told her that he is
prepared to take her and child to accompany him and
that he would get her and her child recorded as his
wife and child. She accompanied the appellant by
making to understand by matrimonial uncle P.W.4. She
stayed there for one day and two nights. It is
thereafter the accused refused to keep her at his house
and the co-accused also threatened that they will not
keep her in the house and nor would get the child
recorded. In short, she was turned out. She stated
that she requested the accused not to turn her out as
she was pregnant. On 17.7.2000 when she came to Chamba
for getting the medicines, she met P.W.1 the person
whom she described as brother and she told him the
whole incident. She also asked to get the matter
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reported at the police. It is thereafter that the
complaint was lodged. She states in her cross
examination that it is correct that the path is a
common village path and people used to pass through the
said path. She stated there was none at that time.
She would say that it is correct that the labourers
used to go their house after finishing their labour
work. She made cries at the time when the accused
caught hold of her by showing a knife. She stated that
she had gone to the house of appellant of her own free
will. She volunteered to say that the accusedappellant had giving assurance that she is his wife and
was carrying his child in her womb. She disclosed that
she told her grandmother about the rape and that she
was turned out by the uncle. The grandmother (Nani)
told her to go to the house of the accused-appellant.
It was out of fear that she did not disclose to anyone.
She states that P.W.1 met her for the first time at
Chamba and the incident was also disclosed to him for
the first time. She admits knowing the accused since
her childhood but denied having either played with him
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or studied with him. She states that when she went to
the house of the appellant, she slept with him during
the night. She stated that she had told the petition
writer that the appellant took her forcibly at the
point of knife and threatened to kill her with the
same. She was confronted with the petition wherein it
was not so recorded. In the petition to the police
also it is her statement she has stated so but it was
found not recorded.
9. We may also notice also the deposition of P.W.1 to
whom according to her, she disclosed for the first time
in July, 2000 and with whom she lodged a complaint. He
stated that it was disclosed by her to him that the
appellant committed rape when she was coming back to
her house after purchasing medicines. He admits that
the uncle of the prosecutrix is alive and he has not
lodged any complaint. He admits that village Dugli to
which place prosecutrix had gone in December, 1999 to
purchase article is scattered within a radius of one
kilometer. He would say that he got drafted in Exhibit
P.A. that prosecutrix had disclosed to him that the
13
appellant had threatened her with knife/dagger in case
she disclosed the incident to anyone. He stated that
this fact was not got drafted in Exhibit P.A.
10. P.W.3 is not only married to uncle of the
prosecutrix but is also the elder sister of her own
mother. She has inter alia stated that when PW.2 after
staying at her maternal grandmother’s house for 3
months and thereafter after coming back after 21/22
days, on noticing that her womb was getting bigger and
on her being questioned about it, she disclosed what
happened in December, 1999 namely, the rape committed
by the appellant. She also stated that out of fear as
well as feeling ashamed this was not disclosed to
anyone. Again, PW 2 was sent back to her maternal
grandmother’s house who is none other than the mother
of PW 3. At that time PW 2 was six months pregnant.
PW 3 would further state that Rattan Chand (who was in
fact examined as PW 4) who is maternal uncle of the
prosecutrix and who is having in laws in her village
visited her house. She claims to have thereupon
disclosed about the rape to him. The prosecutrix was
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thereupon called back from her maternal grandmother’s
house. A baradari was called. The appellant did not
attend. Thereafter she speaks about her coming to know
that prosecutrix went with the appellant and stayed
with him and was turned out later on. In Cross
Examination she would state that the prosecutrix was
carrying pregnancy of 6 months when the baradari
meeting was called. She disclaims knowledge of the
outcome in the meeting. She admits that the stomach
would start bulging out in 4 months pregnancy. In
further cross she would state that prosecutrix
continued for 15 days at her house after the disclosure
about carrying the child of the appellant and
thereafter she went to maternal grandmother’s house.
She admits that she and her husband (namely, uncle of
prosecutrix) did not lodge any report either with the
Pradhan or the Police. The prosecutrix was brought up
by them from the age of about 2 ½ years. In regard to
the path she denied that there is only path in between
Bhogi and Dugli village. She states there are two to
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three other paths. She, however, admits that this
path is a common path.
11. PW 4 Rattan Chand however, has a different
version about how he came to know about the matter. He
would state that prosecutrix is related to him. On
5.7.2000 she came to his house at village Panjah. On
inquiry about her womb being bigger than normal she
told him about the forcible sexual intercourse
committed by the appellant in December, 1999 and about
her being threatened with the help of a knife not to
disclose it to anyone. He further states two days
thereafter, namely on, 7.7.2000 he came to the house of
his in-laws in village Bhoga and this fact was
disclosed to the Panchayat member Bhola Ram who
suggested a ‘Baradari’ meeting. In the said baradari
meeting Loki Nand, Kishan Chand, Balo Ram and the
prosecutrix was also there. As the appellant and his
family members did not attend the meeting, the meeting
could not take place. He further states that it was
subsequently decided to report to the matter to the
Police. Two days thereafter, namely, on 9.7.2000 at
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about 9/10 p.m., appellant and, PW 5 came to his
father-in-law. They wanted to have special talk with
him. It is thereupon that he says that the appellant
requested him with folded hands that since he was the
maternal uncle of the prosecutrix that he has committed
wrong with her by committing forcible sexual
intercourse due to which she became pregnant and the
foetus in her womb belongs to him. He wanted to take
the prosecutrix to his house and wanted to keep her as
his wife and also unborn child and to get them recorded
in the Panchayat Register if they were ready to send
her as his wife. Under compelling circumstances and
having no other way it was decided to send the
prosecutrix as his wife. The prosecutrix was not ready
to go as his wife but she was made to understand and
then she went to the house of the accused-appellant.
She was taken on the same night. She stayed for one
day and two nights. Then she was turned out. In cross
examination he states that he did not report the matter
to any authority when the prosecutrix disclosed the
incident to him. After ‘baradari’ meeting the
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prosecutrix started living with her Nani. He further
states that the accused-appellant visited his house on
5.7.2000 and at that time Sahib Singh (PW 5), Khelku
Devi and the prosecutrix was also present. The
appellant was accompanied by PW 5.
12. He admits that his statement was recorded by
the police. He states that he did not state to the
police that the prosecutrix told him that the appellant
had met her on the way and that he had committed
forcible sexual intercourse with her.
He further states as follows:
“It is correct that I have not stated
the aforesaid facts to the Police as it
was not disclosed to me by the
prosecutrix”.
No doubt, thereafter it is found that he states as
follows:
“I have not stated to the Police that
the Prosecutrix told me that the
appellant took her to the bushes on the
point of knife on the pretext that the
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prosecutrix had already stated the said
fact to the police”.
13. In his deposition P.W.5 would state that on
9.7.2000 at about 8.00 p.m. while he was coming back,
the appellant and the co-accused met him. The
appellant requested him with folded hands by taking him
into a side and told him that compromise be got
effected with the prosecutrix because he has committed
wrong with her and the child in her womb is his
offspring. However, in cross examination he would
state as follows:
“Witness Rattan Chand told me that the
accused person want to effect compromise
with the prosecutrix. Accused Prakash
Chand had no talk with me regarding the
aforesaid fact. Similarly, no talk took
place with me and accused Chakknu on the
said fact. It is correct that Rattan
Chand told me about the compromise by
the accused person with the
prosecutrix.”
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14. There is admittedly a delay of 7 months in
lodging the FIR in the case of alleged rape. If the
case is reported immediately apart from the inherent
strength of the case flowing from genuineness
attributable to such promptitude, the perceptible
advantage would be the medical examination to which the
prosecutrix can be subjected and the result of such
examination in a case where there is a resistance. It
is the case of the prosecution that she raised hue and
cry and therefore apparently she would have resisted.
Possibly, a medical examination may have revealed signs
of any resistance or injuries. In this case the High
Court has proceeded on the basis of testimony of the
prosecutrix and sought to fortify it by the extra
judicial confession made before PW4 and PW5.
15. As far as PW 4 is concerned, his evidence is
based on the prosecutrix going to him on 05/07/2000 and
revealing to him what had happened allegedly in
December 1999 whereas PW3, the maternal aunt of the
prosecutrix clearly says that after prosecutrix told
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her about the alleged rape and when PW4 came to visit
the same village where his in-laws also resides at that
juncture on 07/07/2000, the factum of the alleged rape
was disclosed to him and he came to know on the said
basis. This is a completely different version from
what PW4 has spoken. If PW3 is to be believed, then
knowledge about the alleged incident was gained by
P.W.4 only on 07/07/2000 and that too from PW3 instead
he sets up the case that on 05/07/2000 the prosecutrix
went to his house and told him about the same. In
fact, even the prosecutrix in her version has no such
case. Rather, the prosecutrix would say that the
incident was disclosed by P.W.3 to P.W.4. This
completely falsifies the version of P.W.4 that on
5.7.2000 the prosecutrix went and told him about the
incident including about the threat of using the knife.
P.W.4 as we have noted in further cross examination
would state that he did not tell the police on the
basis that she had not told him about it. This would
again show that version of P.W.4 that prosecutrix had
went and told him about the incident, cannot be
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believed. No doubt, P.W. 4 seeks to state that he did
not tell the Police about what the prosecutrix told him
thinking that prosecutrix would have told the police
about it. It does not appear to be safe. In such
circumstances, it may not be safe to draw support from
the alleged extra judicial confession alleged to have
been made by the appellant to him.
16. As far as P.W.5 who again has been believed by
the courts, we would notice that in the cross
examination he categorically states that the appellant
and also co-accused did not ask him for compromise.
This is contrary to his version that on the way back to
his home on 09/07/2000 he met him and he sought for a
compromise. It is also to be noted that PW 4 has
stated in his cross examination that PW5 had met him on
05/07/2000 along with the appellant. This is not
considered by the courts below. We have indulged in a
closer look at the evidence in these proceedings having
regard to the need to do so in view of the fact that
the complaint itself is lodged after 7 months. If the
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evidence adduced by the prosecution falls short of the
test of reliability and acceptability and as such it is
highly unreliable to act upon it even in an appeal by
special leave, such a critical examination may not be
unwarranted. See decision of this Court in Ganga Kumr
Srivastava v. State of Bihar 2005 (6) SCC 211. Also
when vital evidence is not appreciated, this Court can
interfere. Furthermore, we notice that the trial
court, in fact, proceeded on the basis that the
prosecutrix was not a minor. The High Court finds on
evidence that the prosecutrix was not a minor.
Moreover, we notice that the High court has found as
follows:
“16. ………On 18-8-2000, the prosecutrix
was again brought and was examined by
him and the pregnancy of approximately
36 weeks was detected. There is nothing
in the MLC that the prosecutrix was
habitual of sexual intercourse……”.
However, we find in Exhibit PE which is the MLC dated
18/08/2000, it is clearly stated under the head
‘opinion’ as follows:
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“The pt. is used to habitual sexual
intercourse”
17. If we do not place confidence in the deposition
of PW4 and PW5 then the case would depend upon the
credibility of PW2, the prosecutrix. The incident is
alleged to have taken place near a path which has been
admitted by the prosecutrix and her aunt PW3 as common
path. If indeed the prosecutrix has raised hue and cry
as in the case reported in 2013 (9) SCC 113, it is very
unlikely that the labourers who are supposed to haunt
the common path could not hear it. There is a case of
the appellant that the evidence would make out a case
of consensual sex. It is true that in the High Court,
it is recorded that there is no case of consensual
sexual intercourse as such argued but we have to decide
the case on the basis of evidence. We would think in
the circumstances of this case that the appellant
cannot be convicted for the offence under Section 376.
It would indeed be unsafe to convict him based on the
testimony of the prosecutrix. He would certainly be
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entitled to the benefit of doubt which is created by
the very circumstances which we have referred.
18. As far as the charge against the appellant
under Section 376 IPC is concerned, it reads as
follows:
“That in the month of December 1999 at
about 5/6 PM at village Bhoga, you
committed rape upon Kumari ……………at a
place one kilometer away from Dugli
towards Bhoga and thereby committed an
offence punishable under Section 376 IPC
and within my cognizance;
And I hereby direct you accused be tried
on the said charge by this court.”
As far as the charge under Section 506 read with 34 IPC
is concerned, it reads as follows:
“That on 10.7.2000 at village Bhoga, you
alongwith your co-accused in furtherance
of common intention, criminally
intimidated Kumari ……….to do away with
her life and thereby committed an
offence punishable under Section 506 IPC
read with Section 34 IPC and within my
cognizance;
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And I hereby direct you accused be tried
on the said charge by this Court.”
19. The trial Court, in fact, has proceeded to rely
upon the testimony of prosecutrix about the appellant
threatening her that in case she discloses the incident
to anyone she will be killed by the accused. This
apparently is related to the incident in December,
1999. In fact, the appellant was specifically charged
with criminal intimidation allegedly done on
10/07/2000. The appellant was so charged in alleged
furtherance of common intention along with co-accused.
The trial Court has also proceeded to convict the coaccused relying on the evidence of the prosecutrix.
The High Court has acquitted the co-accused of the
charge of criminal intimidation. We have noted that
there is no specific charge even framed against the
appellant under Section 506 in regard to the alleged
incident which took place in December, 1999 and the
charge in fact relates only to the acts alleged to have
been committed on 10/07/2000. Apart from the fact that
there is no specific charge against the appellant in
26
regard to what happened in December, 1999, we are
inclined to think that the appellant could not be
convicted under Section 506 having regard to the
circumstances which we have already discussed
hereinbefore.
20. In such circumstances, the appeal is allowed.
We set aside the order of conviction and sentence of
the appellant by the courts below. As the appellant is
on bail, the bail bonds of the appellant stands
discharged.
…………………………….CJI.
(Ranjan Gogoi)
…………………………….J.
(Sanjay Kishan Kaul)
…………………………J.
(K.M. Joseph)
New Delhi;
February 12, 2019
