Page 1 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 1

st

Additional Sessions

Judge, Jamshedpur in S.T.No.168 of 1994/172 of

1995. By the said judgment, the appellant herein

Page 2 2

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 the

Page 3 3

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 the

Page 4 4

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 5

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,

Page 6 6

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 by

Page 7 7

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 not

Page 8 8

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 Haryana

1

, 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

Page 9 9

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 have

Page 10 10

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 the

Page 11 11

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, the

Page 12 12

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 13

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 any

Page 14 14

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 of

Page 15 15

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 wholly

Page 16 16

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 the

Page 17 17

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 rape

Page 18 18

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 19

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 20

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 non-

examination 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 once

Page 21 21

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 class-

mates 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

Page 22 22

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

Page 23 23

to mention the judgment of this Court in Raju v.

State of Madhya Pradesh

2

, 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

Page 24 24

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

Page 25 25

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 26