2024 INSC 393 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 906 OF 2023

SELVAMANI …APPELLANT(S)

VERSUS

THE STATE REP. BY THE

INSPECTOR OF POLICE …RESPONDENT(S)

J U D G M E N T

B.R. GAVAI, J.

1. This appeal challenges the final judgment and order

dated 27

th August 2019, passed by the learned Single Judge

of the High Court of Judicature at Madras

1, whereby vide a

common judgment, the High Court dismissed Criminal

Appeal Nos. 449 and 840 of 2012. The present Appellant,

who is Accused No. 2, had filed the Criminal Appeal No. 840

of 2012, along with Accused Nos. 3 and 4, under Section 374

of Criminal Procedure Code, 1973

2, challenging the judgment

and order dated 26

th June 2012, passed by the learned

1

Hereinafter referred to as, “High Court”.

2

Hereinafter referred to as, “CrPC”.

2

Additional District and Sessions Judge, Court No. III,

Thirupathur, Vellore District

3, in Sessions Case No. 277 of

2010, whereby the trial court had convicted and sentenced

the accused persons for offences punishable under Section

376(2)(g) and 506(1) of Indian Penal Code, 1860

4, and Section

4 of the Tamil Nadu Prevention of Women Harassment Act.

2. The facts, in brief, giving rise to the present appeal are

as given below:

2.1 On 28

th January 2006, Police Station Vaniyampadi

Town received a written information from the victim (PW-1),

to the effect that she had been gang raped. On the basis of

the said written information, Police Station Vaniyampadi

Town registered a First Information Report (FIR), vide P.S.

Crime No. 115 of 2006 for the offence punishable under

Sections 341, 323, 376 and 506(2) IPC read with Section 4 of

Tamil Nadu Prevention of Women Harassment Act. On

registration of the FIR, Shri Loganthan, Inspector of Police,

Vanianpadi Town Police Station (PW -13) (I.O.) visited the

place of occurrence and prepared observation Mahazar and

sketch. He recorded the statement of witnesses. The accused

3

Hereinafter referred to as, “trial court”.

4

Hereinafter referred to as, “IPC”.

3

persons were arrested. The medical officer examined the

victim and her statement was recorded under Section 164

CrPC by the Judicial Magistrate, Thirupattur.

2.2 The prosecution case, in a nutshell, is that the victim

was working at Emerald Shoe Company, Vaniyampadi for

three years leading upto the day of the incident. On the day

of the incident, i.e., 27

th January 2006, at about 7 PM, when

the victim, aged 22 years, was returning to her house, after

completing her work, the Accused No. 1 who was the

Manager/Owner of the said Company came to her and told

her that he wanted to talk to her about certain matter and so

he took her to a place near the Railway Bridge, where already

the other four persons (Accused Nos. 2 to 5) were standing,

who then forcibly dragged her to a secluded place and

threatened to throw her on the railway track if she shouted.

They then stripped her. The victim cried for help, upon which

she was threatened with a knife. The accused persons

committed gang rape on her. Accused No. 1 assaulted the

victim as well. The act continued till 3:30 AM, the next

morning, when she escaped and came back to her house. On

her return, she informed her mother (PW-2) and aunt (PW-3)

4

and later during the same day, she got the FIR registered.

2.3 At the conclusion of the investigation, a charge-sheet

came to be filed by the I.O. in the Court of Vanianpadi

Judicial Magistrate. Since the offence charged against the

accused persons was triable only by the Court of Sessions,

the case was committed to the learned Principal District and

Sessions Judge, Vellore, and the same was made over to the

learned trial court, for disposal.

2.4 Charges were framed by the trial court under Sections

376(2)(g) and 506(1) of IPC and Section 4 of Tamil Nadu

Prevention of Women Harassment Act.

2.5 The accused persons pleaded not guilty and claimed to

be tried. To bring home the guilt of the accused, the

prosecution examined fourteen (14) witnesses, twenty -five

(25) exhibits were marked along with two (2) material objects.

The defence of the accused was that they had been falsely

implicated. At the conclusion of the trial, the trial court

found that the prosecution had proved the case beyond

reasonable doubt against the accused persons and so

convicted them under Section 376(2)(g) and 506(1) IPC and

Section 4 of Tamil Nadu Prevention of Women Harassment

5

Act and sentenced each accused person to 10 years rigorous

imprisonment and fine of Rs. 5,000/ - for the offence

committed under Section 376(2)(g) IPC, 1-year rigorous

imprisonment and fine of Rs. 1,000/ - for the offence

committed under Section 506(1) IPC and 1 -year

imprisonment for the offence committed under Section 4 of

the Tamil Nadu Prevention of Women Harassment Act , in

default of payment of fine they were to undergo 3-months

simple imprisonment. The sentence was to run concurrently

and the period already undergone was to be set-off. Since the

Accused No. 5 had died during the trial, the case against him

stood abated.

2.6 Being aggrieved thereby, the accused persons preferred

appeal against the final judgment and order of the trial court.

There were two appeals before the High Court. Accused No. 1

filed Criminal Appeal No. 449 of 2012 and the Accused Nos.

2 to 4 filed Criminal Appeal No. 840 of 2012. Vide impugned

judgment, the High Court dismissed both the criminal

appeals and upheld the findings of the trial court.

2.7 Aggrieved as a result, the present appeal has been filed

only on behalf of Accused No. 2.

6

3. We have heard Shri Rahul Shyam Bhandari, learned

counsel appearing on behalf of the appellant and Shri V.

Krishnamurthy, learned Senior Additional Advocate General

appearing on behalf of the State of Tamil Nadu.

4. Shri Rahul Shyam Bhandari, learned counsel appearing

for the appellant, submits that the High Court has grossly

erred in dismissing the appeal filed by the appellant herein.

It is submitted that the victim (PW-1) as well as her mother-

Jaya (PW-2) and her aunt -Jamuna (PW-3) have not

supported the prosecution case in their cross examination.

Learned counsel for the appellant further submits that the

medical evidence also does not support the evidence of the

prosecution. Learned counsel for the appellant, relying on

the judgment of this Court in the case of Rai Sandeep alias

Deepu v. State (NCT of Delhi)

5, submits that when the

evidence of the prosecutrix and the medical evidence does

not support the prosecution case, the conviction could not be

sustainable.

5. In the present case, the prosecutrix as well as her

mother-Jaya (PW-2) and her aunt-Jamuna (PW-3) have fully

5

(2012) 8 SCC 21 : 2012 INSC 322

7

supported the prosecution case. The examination-in-chief of

the prosecutrix would reveal that she has stated that when

she was returning to her house, the Accused No.1, who is the

owner of the company in which she works, came and asked

her to come with him for giving details of some official work.

Accused No.1 took the victim, where four accused persons

were standing and then Accused No.1 asked the prosecutrix

to remove her clothes and when she refused, her clothes were

removed by the other accused and thereafter they ravished

her. The evidence would also show that though she informed

that she was at pains, they committed forcible sexual

intercourse with her one by one on various occasions. She

has stated that, when the accused persons left at around 3

o’clock in the morning, she went home and narrated the

version to her mother and relatives. PW-2 and PW-3, mother

and aunt of the prosecutrix respectively, have also stated in

their evidence that when the prosecutrix came home , she

narrated the incident to them. The FIR came to be lodged

immediately on the very same day.

6. The statement of the prosecutrix under Section 164

CrPC was also recorded before S mt. Lakshmi Ramesh,

8

Judicial Magistrate (PW-6). PW-6 has also deposed about

the prosecutrix, giving the statement and narrating the entire

incident.

7. Dr. Indrani, Medical Expert (PW.8), who had examined

the victim, has clearly stated that the prosecutrix was having

injuries on her person. Her evidence establishes the fact that

there was forcible sexual intercourse several times by several

persons. Her evidence also shows that on account of the said

incident, the victim lost her virginity and there were also

abrasions on the private parts of the victim.

8. No doubt that the prosecutrix and her mother and aunt

in their cross-examination, which was recorded three and a

half months after the recording of the examination-in-chief,

have turned around and not supported the prosecution case.

9. A 3-Judge Bench of this Court in the case of Khujji @

Surendra Tiwari v. State of Madhya Pradesh

6, relying on

the judgments of this Court in the cases of Bhagwan Singh

v. State of Haryana

7, Sri Rabindra Kuamr Dey v. State

of Orissa

8, Syad Akbar v. State of Karnataka

9, has held

6

(1991) 3 SCC 627 : 1991 INSC 153

7

(1976) 1 SCC 389 : 1975 INSC 306

8

(1976) 4 SCC 233 : 1976 INSC 204

9

(1980) 1 SCC 30 : 1979 INSC 126

9

that the evidence of a prosecution witness cannot be rejected

in toto merely because the prosecution chose to treat him as

hostile and cross-examined him. It was further held that the

evidence of such witnesses cannot be treated as effaced or

washed off the record altogether but the same can be

accepted to the extent their version is found to be dependable

on a careful scrutiny thereof.

10. This Court, in the case of C. Muniappan and Others v.

State of Tamil Nadu

10, has observed thus:

“81. It is settled legal proposition that : (Khujji case,

SCC p. 635, para 6)

‘6. … the evidence of a prosecution

witness cannot be rejected in toto merely

because the prosecution chose to treat

him as hostile and cross-examined him.

The evidence of such witnesses cannot be

treated as effaced or washed off the record

altogether but the same can be accepted

to the extent their version is found to be

dependable on a careful scrutiny thereof.’

82. In State of U.P. v. Ramesh Prasad Misra, (1996)

10 SCC 360] this Court held that (at SCC p. 363,

para 7) evidence of a hostile witness would not be

totally rejected if spoken in favour of the

prosecution or the accused but required to be

subjected to close scrutiny and that portion of the

evidence which is consistent with the case of the

prosecution or defence can be relied upon. A similar

view has been reiterated by this Court in Balu

Sonba Shinde v. State of Maharashtra, (2002) 7 SCC

543], Gagan Kanojia v. State of Punjab, (2006) 13

10

(2010) 9 SCC 567 : 2010 INSC 553

10

SCC 516], Radha Mohan Singh v. State of

U.P.,(2006) 2 SCC 450], Sarvesh Narain Shukla v.

Daroga Singh, (2007) 13 SCC 360] and Subbu Singh

v. State, (2009) 6 SCC 462.

83. Thus, the law can be summarised to the effect

that the evidence of a hostile witness cannot be

discarded as a whole, and relevant parts thereof

which are admissible in law, can be used by the

prosecution or the defence.

84. In the instant case, some of the material

witnesses i.e. B. Kamal (PW 86) and R. Maruthu

(PW 51) turned hostile. Their evidence has been

taken into consideration by the courts below strictly

in accordance with law. Some omissions,

improvements in the evidence of the PWs have been

pointed out by the learned counsel for the

appellants, but we find them to be very trivial in

nature.

85. It is settled proposition of law that even if there

are some omissions, contradictions and

discrepancies, the entire evidence cannot be

disregarded. After exercising care and caution and

sifting through the evidence to separate truth from

untruth, exaggeration and improvements, the court

comes to a conclusion as to whether the residuary

evidence is sufficient to convict the accused. Thus,

an undue importance should not be attached to

omissions, contradictions and discrepancies which

do not go to the heart of the matter and shake the

basic version of the prosecution's witness. As the

mental abilities of a human being cannot be

expected to be attuned to absorb all the details of

the incident, minor discrepancies are bound to

occur in the statements of witnesses. Vide Sohrab v.

State of M.P., (1972) 3 SCC 751, State of U.P. v. M.K.

Anthony, (1985) 1 SCC 505, Bharwada Bhoginbhai

Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, State

of Rajasthan v. Om Prakash, (2007) 12 SCC 381,

Prithu v. State of H.P., (2009) 11 SCC 588, State of

U.P. v. Santosh Kumar, (2009) 9 SCC 626 and State

v. Saravanan, (2008) 17 SCC 587”

11

11. In the case of Vinod Kumar v. State of Punjab

11, this

Court has observed thus:

“51. It is necessary, though painful, to note that PW

7 was examined-in-chief on 30-9-1999 and was

cross-examined on 25-5-2001, almost after 1 year

and 8 months. The delay in said cross-examination,

as we have stated earlier had given enough time for

prevarication due to many a reason. A fair trial is to

be fair both to the defence and the prosecution as

well as to the victim. An offence registered under the

Prevention of Corruption Act is to be tried with all

seriousness. We fail to appreciate how the learned

trial Judge could exhibit such laxity in granting so

much time for cross-examination in a case of this

nature. It would have been absolutely appropriate

on the part of the learned trial Judge to finish the

cross-examination on the day the said witness was

examined. As is evident, for no reason whatsoever it

was deferred and the cross-examination took place

after 20 months. The witness had all the time in the

world to be gained over. We have already opined

that he was declared hostile and re-examined.

52. It is settled in law that the testimony of a hostile

witness can be relied upon by the prosecution as

well as the defence. In re-examination by the Public

Prosecutor, PW 7 has accepted about the

correctness of his statement in the court on 13-9-

1999. He has also accepted that he had not made

any complaint to the Presiding Officer of the court

in writing or verbally that the Inspector was

threatening him to make a false statement in the

court. It has also been accepted by him that he had

given the statement in the court on account of fear

of false implication by the Inspector. He has agreed

to have signed his statement dated 13-9-1999 after

going through and admitting it to be correct. It has

11

(2015) 3 SCC 220 : 2014 INSC 670

12

come in the re-examination that PW 7 had not

stated in his statement dated 13-9-1999 in the

court that recovery of tainted money was not

effected in his presence from the accused or that he

had been told by the Inspector that amount has

been recovered from the accused. He had also not

stated in his said statement that the accused and

witnesses were taken to the Tehsil and it was there

that he had signed all the memos.

53. Reading the evidence in entirety, PW 7's

evidence cannot be brushed aside. The delay in

cross-examination has resulted in his prevarication

from the examination-in-chief. But, a significant

one, his examination -in-chief and the re -

examination impels us to accept the testimony that

he had gone into the octroi post and had witnessed

about the demand and acceptance of money by the

accused. In his cross-examination he has stated

that he had not gone with Baj Singh to the Vigilance

Department at any time and no recovery was made

in his presence. The said part of the testimony, in

our considered view, does not commend acceptance

in the backdrop of entire evidence in examination-

in-chief and the re-examination.

xxx xxx xxx

57. Before parting with the case we are constrained

to reiterate what we have said in the beginning. We

have expressed our agony and anguish for the

manner in which trials in respect of serious offences

relating to corruption are being conducted by the

trial courts:

57.1. Adjournments are sought on the drop of a hat

by the counsel, even though the witness is present

in court, contrary to all principles of holding a trial.

That apart, after the examination-in-chief of a

witness is over, adjournment is sought for cross-

examination and the disquieting feature is that the

trial courts grant time. The law requires special

13

reasons to be recorded for grant of time but the

same is not taken note of.

57.2. As has been noticed earlier, in the instant

case the cross-examination has taken place after a

year and 8 months allowing ample time to

pressurise the witness and to gain over him by

adopting all kinds of tactics.

57.3. There is no cavil over the proposition that

there has to be a fair and proper trial but the duty

of the court while conducting the trial is to be

guided by the mandate of the law, the conceptual

fairness and above all bearing in mind its

sacrosanct duty to arrive at the truth on the basis of

the material brought on record. If an accused for his

benefit takes the trial on the path of total mockery,

it cannot be countenanced. The court has a sacred

duty to see that the trial is conducted as per law. If

adjournments are granted in this manner it would

tantamount to violation of the rule of law and

eventually turn such trials to a farce. It is legally

impermissible and jurisprudentially abominable.

The trial courts are expected in law to follow the

command of the procedure relating to trial and not

yield to the request of the counsel to grant

adjournment for non-acceptable reasons.

57.4. In fact, it is not at all appreciable to call a

witness for cross-examination after such a long

span of time. It is imperative if the examination-in-

chief is over, the cross-examination should be

completed on the same day. If the examination of a

witness continues till late hours the trial can be

adjourned to the next day for cross-examination. It

is inconceivable in law that the cross-examination

should be deferred for such a long time. It is

anathema to the concept of proper and fair trial.

57.5. The duty of the court is to see that not only

the interest of the accused as per law is protected

but also the societal and collective interest is

safeguarded. It is distressing to note that despite

series of judgments of this Court, the habit of

granting adjournment, really an ailment, continues.

14

How long shall we say, “Awake! Arise!”. There is a

constant discomfort. Therefore, we think it

appropriate that the copies of the judgment be sent

to the learned Chief Justices of all the High Courts

for circulating the same among the learned trial

Judges with a command to follow the principles

relating to trial in a requisite manner and not to

defer the cross-examination of a witness at their

pleasure or at the leisure of the defence counsel, for

it eventually makes the trial an apology for trial and

compels the whole society to suffer chicanery. Let it

be remembered that law cannot be allowed to be

lonely; a destitute.”

12. Relying on the aforesaid judgments, this Court has

taken a similar view in the case of Rajesh Yadav and

Another v. State of Uttar Pradesh

12.

13. In the present case also, it appears that, on account of a

long gap between the examination -in-chief and cross

examination, the witnesses were won over by the accused

and they resiled from the version as deposed in the

examination-in-chief which fully incriminates the accused.

However, when the evidence of the victim as well as her

mother (PW-2) and aunt (PW-3) is tested with the FIR, the

statement recorded under Section 164 CrPC and the evidence

of the Medical Expert (PW-8), we find that there is sufficient

corroboration to the version given by the prosecutrix in her

12

(2022) 12 SCC 200 : 2022 INSC 148

15

examination-in-chief.

14. Insofar as the reliance placed by the learned counsel for

the appellant on the judgment of this Court in the case of

Rai Sandeep alias Deepu (supra) is concerned, the said

case can be distinguished, inasmuch as in the said case

except a minor abrasion on the right side of the neck below

jaw, there were no other injuries on the private part of the

prosecutrix, although it was allegedly a forcible gang rape.

As such, the said judgment would not be applicable in the

present case.

15. In the result, we find no reason to interfere with the

concurrent findings of fact recorded by the trial court as well

as the High Court on appreciation of the evidence.

16. The appeal is dismissed.

17. Pending application(s), if any, shall stand disposed of.

..............................J.

(B.R. GAVAI)

..............................J.

(SANDEEP MEHTA )

NEW DELHI;

MAY 08, 2024