Narender Kumar Vs. State
(NCT of Delhi)
[Criminal Appeal
Nos.2066-67 of 2009]
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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