Page 1 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/- .

Page 2 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.

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Page 3 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.

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Page 4 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

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Page 5 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.

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Page 6 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

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Page 7 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

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Page 8 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.

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Page 9 (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

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Page 10 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.

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Page 11 (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

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Page 12 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)

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Page 13 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:

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Page 14 “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.

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Page 15 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

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Page 16 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.

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Page 17 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

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Page 18 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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