KRISHAN KUMAR MALIKversusSTATE OF HARYANA

                          (2011) 8 S.C.R. 774


A                     KRISHAN KUMAR MALIK
                                    v.
                        STATE OF HARYANA
                 (Criminal Appeal No. 1252 of 2011)
                            JULY 04, 2011
B
       [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

         Penal Code, 1860:

c         ss.376(2)(g) and 366 - Abduction of PW-9 (prosecutrix)
    from her aunt's house and subsequent gang-rape - Eight
    accused - Solitary evidence of the prosecutrix - Six accused
    convicted under s.366 while accused-appellant and another
    accused convicted under both s.366 and s.376(2J(g) -
0   Conviction of appellant - Justification. - Held: Not justified -
    The evidence of the prosecutrix did not inspire confidence -
    She did not mention the name of appellant in the FIR, instead
    she described him as Gitta (Short statured) with beard, even
    though she was aware of his name - · No explanation was
E   offered by her in this regard - Initially the prosecutrix reported
    that there were in all 1Opersons but later on she deposed that
    the_re were only eight persons and at some place she naffated
    that only 7 persons were there -During investigation, the
    prosecutrix was taken to the area, to point out the Kathi, where
    she was spid to have been subjected to rape, but she failed
F   to identify the said kothi, which fully belies her case - All
    through, the prosecutrix described appellant as gitta (short
    statured) man with beard, whereas he was in fact 5' 6n tall and
    thus by no stretch of imagination, he could be called a gitta
    (short statured) man - Also, no spot maps were prepared
G   either by the Naib Tehsildar or by the lnvestigaing Officer -
    This was a lacuna on the part of the investigating agency and
    prosecution, the benefit of which must accrue to the Appellant
    - According to the prosecutrix, she was abducted from the
    house of her aunt where her husband and sons were also
H                                  774
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                  775


present, but the prosecution did not examine the aunt or her A
husband, their sons or any of their neighbours - No plausible
and valid reasons were given for their non-examination -
There were several significant variations in material facts in
the s.164 statement of the prosecutrix, her s.161 statement ·
(Cr.P. C.), FIR and deposition in Court- The mother and sister B
of the prosecutrix were not examined, even though their
evidence would have been vital as contemplated under s. 6
of the Evidence Act as they would have been Res Gestae
witnesses - High Court, on the same set of evidence acquitted
two accused, without assigning any cogent, valid or specific     c
reasons for it whereas on the same very set of evidence, the
Appellant was found guilty - Why the same benefit could not
have been bestowed to the Appellant has not .been dealt with
specifically in the impugned judgment of the High Court - In
the undergarments of the prosecutrix, male semen were found
                                                                  0
but these were not sent for analysis in the forensic laboratories
which could have conclusively proved, beyond any shadow
of doubt with regard to the commission of offence by the
Appellant - This lacuna on the part of the prosecution proves
to be fatal and goes in favour of the Appellant - Appellant is E
a physically handicapped person to the extent of 55% as per
Doctor's Report - This handicap would have been much
better identification of the Appellant, which the prosecutrix did
not mention at all - There were thus various shortcomings,
irregularities and lacuna on the part of the prosecution ;....
Appellant accordingly acquitted.                                  F
     Evidence Act, 1872 - s. 6 - Res gestae witness - Held:
The statements said to be admitted as forming part of res
gestae must have been made contemporaneously with the act
or immediately thereafter.                                       G
     Code of Criminal Procedure, 1973 - s.53A - Allegation
of rape - Effect of incorporation of s.53A CrPC - Held: After
incorporation of s.53A in CrPC w.e.f. 23.06.2006, it has
become necessary for the prosecution to go in for DNA test
                                                                 H
    776     SUPREME COURT REPORTS                [2011) 8 S.C.R.


A in such type of cases, facilitating the prosecution to prove its
  case against the accused - Prior to 2006, even without the
  aforesaid specific provision in the Cr.P. C. prosecution could
  have still resorted to this procedure of getting the DNA test
  or analysis and matching of semen of the accused - In the
B instant case, in the undergarments of the prosecutrix, male
  semen were found but these were not sent for analysis in the
  forensic laboratories which could have conclusively proved,
  beyond any shadow of doubt with regard to the commission
  of offence by the accused-appellant - This lacuna on the part
c of the prosecution goes in favour of the accused-appellant -
  Medical Jurisprudence.

       According to the prosecution, the prosecutrix PW-9
  along with her younger sister 'R' had gone to meet their
  aunt 'B', and while they were talking to each other at the
D house of 'B', the accused persons came there and forcibly
  lifted prosecutrix and put her in a Maruti Van and then
  took her to a separate room in a vacant Kothi where
  accused 'KKM' and another accused 'K' subjected her to ·
  forcible sexual intercourse while the other accused
E fondled with her body parts. It was alleged that
  subsequently the prosecutrix managed to escape from
  the her aunt's house whereafter she narrated the entire
  incident to her mother and sister 'S' after which they went
  to the Police Station to lodge an FIR.
F
       The trial court convicted all the eight accused under
  Section 366 and in addition to it, convicted accused
  'KKM' and three other accused 'V', 'KT' and 'K', under
  Section 376(2)(g)of the IPC as well. On appeal, the High
G Court acquitted 'V' and 'KT'. The conviction of the other
  accused was maintained by the High Court. Thus out of
  the initial eight accused, six were held guilty under
  Section 366 IPC while 'KKM' and 'K' were held guilty
  under both Section 366 and Section 376(2)(g) IPC. The
  instant appeal was filed by only 'KKM'.
H
 KRISHAN KUMAR MALIK v. STATE OF HARYANA                 777


    The question which arose for consideration was              A
whether there existed sufficient, cogent, valid, reliable and
trustworthy evidence to hold the appellant 'KKM' guilty
of committing the offences of abduction and rape on the
prosecutrix or whether he had been falsely implicated.
                                                                B
    Allowing the appeal, the Court
     HELD:1.The prosecutrix P.W.9 had not mentioned
the name of the Appellant in the FIR, instead she
described him as Gitta (Short statured) with beard, even
though she was aware "of his name. No explanation has C
been offered by her in this regard. The number of people
who were with the prosecutrix during the abduction and
subsequent rape, has not been conclusively ascertained.
The Prosecutrix admitted in her cross examination that
she had come to know the names of all the accused D
during the course of occurence, as they were taking each
other's names. If that be so, then why she did not name
the Appellant in the FIR is a million dollar question?
These ommissions speak volumes against her and her
credibility stands shaken. It is also to be noted that E
initially she reported that there were in all 10 persons bat
later on she deposed that there were only eight persons
and at some place she narrated that only 7 persons were
there. When she had ample time to count the number of
persons then why this wavering in the number of F
persons. These acts or omissions of Prosecutrix cannot
be said to be minor contradictions as these are very
relevant pieces of evidence. Because of such
contradictions, an agile and active court can differentiate
between genuine cases from the frivolous and concocted G
ones. The role of courts in such cases is to see, whether
the evidence available before the court is enough and
cogent to prove the accused guilty. [Paras 15, 16 and 17]
[788~E-F; 789-A·D]

    2. From the record it is established that PW-9 was          H
    778       SUPREME COURT REPORTS              [2011] 8 S.C.R.


A member of a Musical Concert Party, which used to
    perform at various functions.· Her photographs and video
    recording fully reflects it, yet she had the audacity to deny
    this fact. It is also pertinent to mention, if she had really
    met her mother and sister 'S' at the Bus Stop in
B Kurukshetra then, why her mother or her sister 'S' was
  . not examined by the Prosecution. Thus story of meeting
    them at Kurukshetra Bus Stop is wholly unreliable and it
    appears to be concocted. [Para 18] [789-E-F]

C         3. The medical evidence shows ~hat the Labia Majora
  and Labia Minora of PW-9 were healthy and had no marks
  of injury. Hymen had old healed tear and the -same was
  not red hot or tender and did not bleed on touching.
  Vagina admitted two fingers easily. P.W.6(Dr.) further
  opined in her cross-examination that PW-9 might be
D habitual to sexual intercourse prior to the alleged incident
  Her Medico Legal Report and medical evidence further
  reveal that she had not received any significant injuries
  on other parts of her body and injuries on her private
  parts were much less as mentioned by her in the FIR,
E except for the cheek bite. [Para 19] [789-G-H; 790-A]
       4. PW-9 had travelled certain distance in the Maruti
  Van after her alleged abduction but she did not raise any
  alarm for help. This shows her conduct and behaviour
F during the whole process and render her evidence shaky
  and untrustworthy. The statement of the prosecutrix that
  in all 11 persons were there in the Maruti Van renders it
  further doubtful as it would be extremely difficult for 11
  persons to be accommodated in the Maruti Van, the
G seating capacity of which is only 5. [Paras 20, 21] [790-
  B-C]
          5. During the course of investigation, the prosecutrix
  was taken to the area, to point out the Kothi, where she
  was said to have been subjected to rape, but she failed
H to identify the said kothi. PW-9 was alleged to have been
 KRISHAN KUMAR MALIK v. STATE OF HARYANA                   779


abducted during broad day light, thus her failure to              A
identify the kothi, fully belies her case. [Para 22) [790-0)
     6. On the account of various serious contradictions
in the statement of prosecutrix and her actions, it can be
safely concluded that she was certainly not telling a
                                                                  8
gospel truth. The solitary evidence of the prosecutrix to
bring home the charge of abduction and commission of
rape by the appellant does not inspire confidence and is
not of sterling quality. It is neither prudent nor safe to hold
the appellant guilty of commission of the said offence.           C
[Paras 23,24] [790-E-G]

     7. No identification parade was conducted to identify
the Appellant as the description given by prosecutrix
about the details did not match with his appearance. All
through, she has been describing the Appellant as gitta· D
(short statured) ·man with beard, whereas a statement
before the Bench has been made by the counsel for
Appellant, after verification from the Appellant's wife, that
he is 5' 6" tall. This fact has been independently
corroborated by the jailor's report on this specific query. E
Even though a man having height of 5' 6" cannot be said
to be tall but by no stretch of imagination, he could be
called a gitta (short statured) man. PW-9 was already
shown the Appellant and other accused at the Police
Station, after they were arrested. Thus, her dock F
identification in Court had become meaningless. [Paras
25, 26] [790-H; 791-A-C]
     8. No spot maps were prepared either by the Naib
Tehsildar or by the lnvestigaing Officer to show the size
of the room where the incident allegedly happened. If the G
size of the room was so small then it could not have been
possible to accommodate 7 persons and also allowing
the Appellant to commit the offence of rape. This was a
lacuna on the part of the investigating agency and
prosecution, the benefit of which must accrue to the H
    780      SUPREME COURT REPORTS               [2011] 8 S.C.R.


A Appellant. PW-11, Inspector/ SHO had not gone to see the
  spot at all, which he admitted in his cross-examination.
  This certainly reflects and shows .the casual manner in
  which the investigation was conducted. The statement of
  PW-13, Sub Inspector, further goes to show that not only
B the prosecutrix but even the I.Os failed to locate the site
  where offence of rape was said to have been committed.
  [Paras 27, 28, 29] [791-D-F, H; 792-A-C]
      9. Though according to the prosecutrix, she was
  abducted from the house of her aunt 'B' where, apart from
C the above two ladies, the husband and sons of 'B' were
  also present, the prosecution did not examine either 'B'
  or her husband, their sons or any of their neighbours. No
  plausible and valid reasons have been given for their
  no_n-examination. [Para 30] [792-D-E]
D     10. No doubt, it is true that to hold an accused guilty
   for commission of an offence of rape, the solitary
   evidence of prosecutrix is sufficient provided the same
   inspires confidence and appears to be absolutely
   trustworthy, unblemished and should be of sterling
E quality. But, in the case in hand, the evidence of the
  ·prosecutrix, showing several lacunae, would go to show
   that her evidence does not fall in that category and
   cannot be relied upon to hold the Appellant guilty of the
   said offences. Indeed there are several significant
F variations in material facts in her S.164 statement, S.161
   statement (Cr.P.C.), FIR and deposition in Court. Thus, it
   was necessary to get the evidence of the prosecutrix
   corroborated independently, which they could have done
   either by examination of her sister or '8', who were
G present in the house at the time of her alleged abduction.
   Record shows that 'B' though cited as a witness was not
   examined and later given up by the public prosecutor on
   the grc;>Und that she has been won over by the Appellant.
   [Paras 31, 32] [792-F-H; 793-A-BJ
H         11. As per the FIR lodged by the prosecutrix, she first
   KRISHAN KUMAR MALIK v. STATE OF HARYANA           781


  met her mother and sister at the bus stop at Kurukshetra A
  but they have also not been examined, even though their
  evidence would have been vital as contemplated under
  Section 6 of the Indian Evidence Act, 1872 as they would
  have been Res Gestae witnesses. The purpose of
  incorporating Section 6 in the Act is to complete the B .
  missing links in the chain of evidence of the solitary
  witness. In the narrative of PW-9, it is amply clear that 'B'
  and 'R' were stated to be at the scene of alleged
  abduction. Even though 'B' may have later turned hostile,
  'R' could still have been examined, or at the very least, c
  her statement recorded. Likewise, her mother could have
  been similarly examined regarding the chain of events
  after the prosecutrix had arrived back at Kurukshetra.
  Thus, they would have been the best person to lend
  support to the prosecution story invoking Section 6 of 0
  the Act. Section 6 of the Act has an exception to the
 .general rule where-under, hearsay evidence becomes
  admissible. But as for bringing such hearsay evidence
· within the ambit of Section 6, what is required to be
  established is that it must be almost contemporaneous E
  with the acts and there could not be an interval which
  would allow fabrication. In other words, the statements
  said to be admitted as forming part of res gestae must
   have been made contemporaneously with the act or
   immediately thereafter. In the case on hand, PW-9 had met
  her mother and sister soon after the occurrence, thus, F
  they could have been the best res gestae witnesses, still
  the prosecution did not think it proper to get their
  statements recorded. This shows the negligent and
  casual manner in which prosecution had conducted the
  investigation then the trial. This lacuna has not been G
  explained by the prosecution. The prosecution has not
  tried to complete this mssing link so as to prove it,
  beyond shadow of doubt, that it was Appellant who had
  committed the said offences. [Paras 33, 35, 36) (793-D-E;
 794-C-F]                                                  H
    782      SUPREME COURT REPORTS                [2011] 8 S.C.R.


A         Black's Law Dictionary - referred to.
       12. The High Court, on the same set of evidence
  acquitted two accused, without assigning any cogent,
  valid or specific reasons for it whereas on the same very
8 set of evidence, the Appellant has been found guilty. Why
  the same. benefit could not have been bestowed to the
  Appellant has not been dealt with specifically in the
  impugned judgment. The prosecution also adopted a
  peculiar mode in the case as only after the first statement
  of prosecutrix was recorded under Section 164 of the
C Cr.P.C. before Judicial Magistrate, First Class,
  Kurukshetra, her further statement under Section 161 of
  the Cr.P.C. was recorded. In fact, the procedure should
  have been otherwise. This further shows that right from
  the beginning the prosecution was doubtful on the
D trustworthiness of the prosecutrix herself. Precisely that
  was the reason that she waft first bound down by her
  statement under Section 164 of the Cr.P.C. [Paras 37, 38,
  39] [794-G-H; 795-A-B]
E      13. In the undergarments of the prosecutrix, male
  semen were found but these were not sent for analysis
  in the forensic laboratories which could have
  conclusively proved, beyond any shadow of doubt with
  regard to the commission of offence by the Appellant.
F This lacuna on the part of the prosecution proves to be
  fatal and goes in favour of the Appellant. Appellant is a
  physically handicapped person to the extent of 55% as
  per Doctor's Report, and this fact is not controverted by
  the prosecution. This much of handicap of any person
G would be easily noticeable. In fact, this would have been
  much better identification of the Appellant, which the
  prosecutrix did not mention at all. On account of the
  aforesaid shortcomings, irregularities and lacuna on the
  part of the prosecution, it will not be safe to convict the
H Appellant. [Paras 40, 41, 42] [795-C-F]
  KRISHAN KUMAR MALIK v. STATE OF HARYANA              783

     14. Now, after the incorporation of Section 53(A) in     A
the Criminal Procedure Code; w.e.f. 23.06.2006,. it has
become necessary for the prosecution to. go in for DNA
test in such type of cases, facilitating the prosecution to
prove its case against the accused. Prior to 2006 (as in
the instant case where the incident occurred in 1994),        B
even without the aforesaid specific provision in the
Cr.P.C. prosecution could have still resorted to this
procedure of getting the DNA test or analysis and
matching of semen of the Appellant with that found on
the undergarments of the prosecutrix to make it a fool        c
proof case, but they did not do so, thus they must face
the consequences. Had such a procedure been adopted
by the prosecution, then it would have been a foolproof
case for it and against the Appellant. [Paras 44, 46] [796-
c~Fl
                                                              D
   Taylor's 2"d Edn. (1965) Principles and Practice of
Medical Jurisprudence - referred to.

     15. Looking to the matter from all angles, this Court
is of the considered opinion that the conviction of the       E
Appellant cannot be upheld. The Appellant is acquitted
of all the charges. [Para 47] [796-H; 797-B]

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 1252 of 2011.
                                                              F
    From the Judgment & Order dated 27.03.2009 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 338-SB of 1996.

    Jaspal Singh, Sanjeev Anand, Yakesh Anand, Nimit          G
Mathur, Vikram Anand for the Appellant.

    Roopansh · Purohit, Ramesh Kumar (for Kamal Mohan
Gupta) for the Respondent.

       The Judgment of the Court was delivered by             H
    784      SUPREME COURT REPORTS                  [2011) 8 S.C.R.


A         DEEPAK VERMA, J. 1. Leave granted.
          2. In all, eight accused were charged and prosecuted for
    commission of alleged offe"nces under Section 366 and 376
    (2) (g) of the Indian Penal Code (hereinafter shall be referred
    as 'l.P.C.') for abducting prosecutrix and then committing rape
8
    on her. Trial Court after appreciation of evidence on record
    found all the eight accused guilty for commission of offence·
    punishable under Section 366 and in addition to it, found
    present Appellant (accused) Krishan Kumar Malik, Vijay Dua,
C   Krishan Takkar and Krishan @ Kaka, guilty for commission of
    offences under Section 376 (2) (g)of the IPC. The said four
    accused were awarded a sentence of ten years R.I. and a fine
    of Rs. 2000/- each and in default of payment of such fine to
    undergo further R.I. for a period of one year. These four convicts
    were sentenced further to undergo R.I. for a period of five years
D   for the offence punishable under Section 366 of the l.P.C and
    to pay a fine of Rs. 1,000/- eac~ and in default of payment of
    fine to further undergo R.I. for six months. Two other accused
    were convicted solely under Section 366 of the IPC, and being
    ladies, leniency was shown and they were awarded a sentence
E   of ttiree years R.I. and a fine of Rs. 1000/- each, in default
    whereof, to undergo R.I. for six months each. The remaining two
    accused, Sandeep and Dheeraj were convicted under Section
    366 of the IPC as well and the Trial Court sentenced them each
    to 5 years R.I., and a fine of Rs. 1000/- in default of payment of
F   which a further period of 6 months R.I. would come into effect.

       3. Feeling aggrieved by the judgment and order of
  conviction .recorded by Additional Sessions Judge, Kurukshetra
  in Sessions Case No.52 of 1994 decided on 24.04.1996,
  Criminal Appeal No. 324-SB of 1996 (filed by two female
G accused) and Criminal Appeal No. 338-SB of 1996 was filed
  by remaining six convicted accused in the High Court of Punjab
  and Haryana at Chandigarh. Since both the appeals arose out
  of the same judgment, they were heard analogously and were
  dispqsed off by a common impugned judgment on 27.03.2009.
H
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                     785
            [DEEPAK VERMA, J.]

     4. Learned Single Judge after going through the records          A
and appreciating the evidence available, partly allowed Criminal
Appeal 338-SB of 1996, qua Vijay Dua and Krishan Kumar
Takkar, and acquitted them of all the charges levelled against
them. They were accordingly directed to be set at liberty. Thus
out of the initial eight, only the remaining six accused were found   B
to have committed offences under Section 366 and, in
addition, the Appellant and Krishan @ Kaka were also found
to have committed offences under Section 376 (2) (g) of the
IPC, by the High Court.

     5. The present appeal has been filed by Krishan Kumar            C
Malik only, one of the accused. We were given to understand
that on account of paucity of funds and various other reasons,
other convicted accused have not preferred any appeal.
However on enquiries being made from the office, it came to
our notice that both the Special Leave Petition as well as the        D·
Review Petition filed by one of the two female accused Hardevi
were dismissed by this Court. Thus, in the present appeal, we
are only required to consider whether there existed sufficient,
cogent, valid, reliable and trustworthy evidence to hold the
Appellant guilty of the aforesaid offences. To come to the said       E
conclusion, it is necessary to deal with the bare facts of the
prosecution.

       6. Thumbnail sketch of instant case is as follows:
Prosecutrix, PW-9, was a resident of Saraswati Road, Pehowa           F
and was said to be aged about 17 years at the time of the
commission of the said offence by the accused. She had
passed her 1Qth class. Her father had expired few years prior
to the date of the incident. Prosecutrix has two younger sisters
by the names, Sangeeta and Ritu. Ritu was said to be aged 8           G
years at the time of the incident. She alongwith her mother,
Narayani Devi, and sister, Sangeeta, was running a small book
stall from their house. As she was having vacation in her school,
she alongwith her mother and sisters, after closing the book
shop, came to Darra Khera in Thanesar to meet her maternal
                                                                      H
    786      SUPREME COURT REPORTS                   [2011] 8 S.C.R.

    .
A aunt (mausi), about 15 days before the incident. On the date
  of incident, they were staying with their mausi.
           7. On 23.06.1994, at about 1.00 p.m., prosecutirx went
     with Ritu, her Sister to Sector 13, Kurukshetra to meet her aunt
 8 Bimla, wife of Des Raj. While they were talking to each other
     at about 2.00 p.m., accused Hardevi (Bua), her daughter
     Heena, Heena's husband Sonu and Heena's brother Dheeraj
     accompanied by six boys, whose names were not known to the
     prosecutrix, came to the house of her aunt, Simla. Thereafter,
 c they forcibly lifted prosecutrix and put her in a blue Maruti Van.
     Even though, lot of hue and cry was raised by her as well as
     by her aunt, her aunt's husband, neighbours and others but no
     one came forward to help her. She was then taken to a vacant
     Kothi near a bridge. After reaching the said Kothi, she was
     taken to a separate room, and was subjected to alleged forcible
.D sexual intercourse by a hefty man who was being called as
     Kaka and by another man, who was gitta (short statured), having
     a beard. They committed the alleged crime after removing her
     clothes. There were Six more persons sitting in the said room,
     while two of them committed rape on her one after the other
 E as stated above. Remaining six were also allegedly fondling
     with her body parts. Some of them inserted finger in her anus
     and some of them gave tooth bite on her cheek. The family of
     her so called Bua and others were sitting in the adjoining room
     where the incident had taken place.·
 F
           8. Thereafter, all of them took her forcibly in the same
     Maruti Van to Radaur to the in law's house of her Bua, Hardevi.
     All the six boys left her there. Thereafter, her Bua after cutting
     prosecutrix's hair gave her a beating with sandals. As soon as
 G . she got an opportunity, she escaped from the said house and
     boarded the bus by which she reached Kurukshetra. At
     Kurukshetra she met her mother Narayani and sister Sangeeta.
     She then narrated the whole incident to them after which they
     went to the Police Station to lodge an FIR. FIR was recorded
 H at Police Station, Manesar on 24.06.1994 at 12.30 a.m. In the
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                  787
      .     [l'EEPAK VERMA, J.]

said FIR, the same story was mentioned by the prosecutrix          A
stating that ten persons had participated in the commission of
the said offence. But the name of the Appellant was not
mentioned and instead he was described as Gitta (short
statured) with a beard.
                                                                   B
     9. On the strength of the said FIR, investigation machinery
was set into motion and prosecutrix was sent for medical
examination. On 24.06.1994, at 3.30 a.m. Prosecutrix was
examined by P.W-6, Dr. Sushma Saini, Medical Officer, LNJP
Hospital at Kurukshetra. Her medical report and evidence would     C
be discussed at a later stage. Statement of prosecutrix under
Section 164 of the Criminal Procedure Code, (hereinafter shall
be referred to as 'Cr.PC') was recorded by Shri Jagdeep Jain,
RCS, Judicial Magistrate, 1•1 Class, Kurukshetra on
27 .06.1994. Thereafter on 28.06.1994 her further statement
was recorded under Section 161 of Cr.PC. A perusal of both         D
the aforesaid statement~ clearly indicates that she has given
the name of the present Appellant Krishan Kumar Malik as the
perpetrator, describing him as short statured person.

     10. The FIR lodged by prosecutrix was also sent to local      E
Magistr!'lte on 24.06.1994 at 2.20 a.m. During the course of
investigation, all the accused were arrested. After completion
of investigation, the accused were put on trial for commission
of the said offence before Additional Sessions Judge,
Kurukshetra. They pleaded not guilty and requested for a           F
judicial trial.

    11. In order to bring home the charges levelled against the
accused, the prosecution had examined 14 witnesses on its
behalf. Defence also examined 5 witnesses on their behalf. On
appreciation of evidence available on record, the trial court      G
convicted the Appellant and the remaining 7 accused
mentioned hereinabove and awarded sentences to all of them.

    12. Subsequently, as has been previously stated, in
appeals preferred by all the 8 accused, before the High Court      H
    788     SUPREME COURT REPORTS                 [2011] 8 S.C.R.
                                                              /


A two of them namely Vijay Kumar and Krishan Kumar Takkar
   were acquitted and conviction of remaining accused was
   upheld. However, this appeal. has been preferred by only
 · Krishan Kumar Malik.

        13. We have accordingly heard Mr. Jaspal Singh, learned
8
    Senior Advocate, ably assisted by Mr. Sanjeev Anand, learned
    counsel for the Appellant and Mr. Roopansh Purohit with Mr.
    Ramesh Kumar learned counsel for the Respondent State and
    have perused the record.

C        14. The basic and foremost question that arises for
    consideration in this appeal is whether the present Appellant
    had committed the offence of abduction and rape on the
    prosecutrix on 23 .06 .1994 or whether he has been falsely
    implicated.
D
       15. With intention to proceed further and complete the
  journey to reach the destination, we would first like to consider·
  the evidence of prosecutrix threadbare. She was examined as
  P.W.9. Admittedly she had not mentioned the name of the
  Appellant in the FIR lodged by her promptly, instead she
E described him as Gitta (Short statured) with beard, even though
  she was aware of his name. No explanation has been offered
  by her in this regard.

       16. According to the prosecutrix, only two accused had
F sexual intercourse with her and other four were sitting in the
  room fondling with her body parts. It may be pertinent to point
  out that the number of people who were with the prosecutrix
  during the abduction and subsequent rape, has not been
  conclusively ascertained. This point has been explored in detail
G in the next paragraph. This appears to be quite improbable as
  there were admittedly other rooms, where they could have sat
  so as to allow the Appellant to do the act in privacy. It is not
  her case that due to shortage of time or accomodation this
  method was adopted.
  KRISHAN KUMAR MALIK V; STATE OF HARYANA                      789
            {DEEPAK VERMA, J.]
      17. The Prosecutrix admitted in her cross examination that      A
she had come to know the names of all the accused during the
course of occurence, as they were taking each other's names.
If that be so, then why she did not name the Appellant in the
FIR is a million dollar question? These ommi.ssions speak
volumes against her and her credibility stands shaken. It is also     B
to be noted that initially she reported that there were in all 10
persons but later on she deposed that there were only eight
persons and at some place she narrated that only 7 persons
were there. When she had ample time to count the number of
persons then why this wavering in the number of persons.              c
These acts or omissions of Prosecutrix cannot be said to be
minor contradictions as these are very relevant pieces of
evidence. Because of such contradictions, an agile and active
court can differentiate between genuine cases from the frivolous
and concocted ones. The role of courts in such cases is to see,       D
whether the evidence available before the court is enough and
cogent to provethe accused guilty.

     18. From the record it is established that she was member
of a Musical Concert Party, which used to perform at various
functions. Her photographs and video recording fully reflects it,     E
yet she had the audacity to deny this fact. It is also pertinent to
mention, if she had really met her mother Narayani and sister
at the Bus Stop in Kurukshetra then, why Narayani or her sister
Sangeeta was not examined by the Prosecution. Thus story of
meeting them at Kurukshetra Bus Stop is wholly unreliable and         F
it appears to be concocted.

     19. Medical evidence shows that her Labia Majora and
Labia Minora were healthy and had no marks of injury. Hymen
had old healed tear and the same was not red hot or tender            G
and.did not bleed on touching. Vagina admitted two fingers
easily. P.W.6 Dr. Sushma Saini further opined in her cross-
examination that she might be habitual to sexual intercourse
prior to 23.06.1994. Her Medico Legal Report and medical
evidence further reveal that she had not received any significant
                                                                      H
      790      SUPREME COURT REPORTS                  [2011] 8 S.C.R.


A injuries on other parts of her body and injuries on her private
  parts were much less as mentioned by her in the FIR, except
  for the cheek bite.
           20. Admittedly, she had travelled certain distance in the
      Maruti Van after her alleged abduction but she did not raise
 8    any alarm for help. This shows her conduct and behaviour
      during the whole process and render her evidence shaky and
      untrustworthy.
           21. The statement of the prosecutrix that in all 11 persons
c     were there in the Maruti Van renders it further doubtful as it
      would be extremely difficult for 11 persons to be accommodated
      in the Maruti Van, the seating capacity of which is only 5.
       22. During the course of investigation, the prosecutrix was
  taken to the area, to point out the Kothi, where she was said
D to have been subjected to rape, but she failed to identify the
  said kothi. It may be recalled that she was alleged to have been
  abducted during broad day light, thus he; failure to identify the
  kothi, fully belies her case.
E           23. These are some of the salient features of the lop sided
      story of the prosecutrix, more so, when it has not been
      corroborated by any other evidence. On the account of various
      serious contradictions in the statement of prosecutrix and her
      actions, it could be safely concluded that she was certainly not
      telling a gospel truth.
F
        24. Needless to say the solitary evidence of the prosecutrix
  to bring home the charge of abduction and commission of rape
  by the Appellant does not inspire confidence and is not of
  sterling quality. In our opinion, it is neither prudent nor safe to
G hold the Appellant guilty of commission of the said offence. We
  hold so, on account of many other circumstances, which are
  against the prosecution, narrated hereinbelow:

          25. Admittedly, no identification parade was conducted to
      identify the Appellant as the description given by prosecutrix
p·i   about the details did not match with his appearance. All
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                     791
            [DEEPAK VERMA, J.l

through, she has been describing the Appellant as gitta (short        A
statured) man with beard, whereas a statement before the
Bench has been made by learned counsel for Appellant, after
verification from the Appellant's wife, that he is 5' 6" tall. This
fact has been independently corroborated by the jailor's report
on this specific query. Even though a man having height of 5'         B
6" cannot be said be tall but by no stretch of imagination, he
could be called a gitta (short statured) man.

    26. Admittedly she was already shown the Appellant and
other accused at the Police Station, after they were arrested.        C
Thus, her dock identification in Court had become
meaningless.

     27. No spot maps were prepared either by the Naib
Tehsildar or by the lnvestigaing Officer to show the size of the
room. If the size of the room was so small then it could not have     D
been possible to accommodate 7 persons and also allowing
the Appellant to commit the offence of rape. If the size of the
room could have been verified, then the very genesis of
commission of the offence by the Appellant would fall flat. This
could have been possible to ascertain only if spot map had            E
been prepared. This was a lacuna on the part of the
investigating agency and prosecution, the benefit of which must
accrue to the Appellant.

     28. PW-11, Sohan Singh, Inspector/ SHO had not gone
to see the spot at all. He has admitted this in the following         F
manner in his cross-examination:-

           "Since I have never visited house No. 919/13, no site
     plan of that house was prepared. Because the prosecutrix
     herself has not stated the number of house. She was even         G
     unable to identify this house. I did not take the prosecutrix
     in house No. 919/13 inspite of the fact disclosed by
     accused on 27.6.1994."

     This certainly reflects and shows the casual manner in           H
    792      SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A   which the investigation was conducted.

        · 29. PW-13, Sub Inspector Ramji Lal, has also admitted this
    fact by making the following statements:

          "However, Sneh Lata was not in a position to locate the
B         place of the incident. Thereafter, I took her to Radaur.
          Even in Radaur she was not able to locate the place
          where she was criminally assaulted.•
       This further goes to show that not only the prosecutrix but
C even the I.Os failed to locate the site where offence of rape was
  said to have been committed.
        30. According to the prosecutrix, she was abducted from
  the house of Simla Devi where, apart from the above two ladies,
  husband of Simla Devi, Des Raj and sons of Des Raj and
D Simla Devi were present. They had raised hue and cry for help
  at the time of abduction. Many neighbours had come out of their
  houses but surprisingly enough prosecution has not examined
  either Simla Devi or her husband, their ~ons or any of their
  neighbours. No plausible and valid reasons have been given
E for their non-examination.
       31. No doubt, it is true that to hold an accused guilty for
  commission of an offence of rape, the solitary evidence of
  prosecutrix is sufficient provided the same inspires confidence
  and appears to be absolutely trustworthy, unblemished and
F should be of sterling !;1Uality. But, in the case in hand, the
  evidence of the prosecutrix, showing several lacunae, have
  already been projected hereinabove, would go to show that her
  evidence does not fall in that category and cannot be relied
  upon to hold the Appellant guilty of the said offences. Indeed
G there are several significant variations in material facts in her
  S.164 statement, S.161 statement (Cr.P.C.), FIR and
  deposition in Court.
         32. Thus, it was necessary to get her evidence
    corroborated independently, which they could have done either
H
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                   793
            [DEEPAK VERMA, J.]

by examination of Ritu, her sister or Simla Devi, who were         A
present in the house at the time of her alleged abduction.
Record shows that Simla Devi though cited as a witness was
not examined and later given up by the public prosecutor on
the ground that she has been won over by the Appellant.
                                                                   B
        33. As per the FIR lodged by the prosecutrix, she first met
  her mother Narayani and sister at the bus stop at Kurukshetra
  but they have also not been examined, even though their
  evidence would have been vital as contemplated unde·r Section
  6 of the Indian Evidence Act, 1872 (for short "The Acf') as they C
  would have been Res Gestae witnesses. The purpose of
  incorporating Section 6 in the Act is to complete .the missing
  links in the chain of evidence of the solitary witness. There is
  no dispute that she had given full and vivid description of the
 sequence of events leading to the commis.sion of the alleged
  offences by the Appellant and others upon her. In that narrative, D
. it is amply clear that Simla Devi and Ritu were stated to be at ·
  the scene of alleged abduction. Even though Simla Devi may
  have later turned hostile, Ritu could still have been examined,
  or at the very least, her statement recorded. Likewise, her
  mother could have been similarly examined regarding the chain E
  of events after the prosecutrix had arrived back at Kurukshetra.
  Thus, they would have been the best person to lend support to
  the prosecution story invoking Section 6 of the Act.

     34. We shall now deal with Section 6 of the Act, wich reads   F
     as under:

     "6. Relevancy of facts forming part of same transaction -
     Facts which, though not in issue, are so connected with a
     fact in issue as to form part of the same transaction, are
     relevant, whether they occurred at the same time and place    G
     or at different times and places.

    · Black's Law Dictionary defines Res Gestae as follows:

     (Latin: "things done") The events at issue, or other events
                                                                   H
    794       SUPREME COURT REPORTS                 [2011] 8 S.C.R.


A         contemporaneous with them In evidence law, words and
          statements about the res gestae are usually admissible
          under a hearsay exception (such as present sense
          impression or excited utterance).

8        The said evidence thus becomes relevant and admissible
    as res gestae under Section 6 of the Act.

       35. Section 6 of the Act has an exception to the general
  rule wher~-under, hearsay evidence becomes admissible. But
  as for bringing such hearsay evidence within the ambit of
C Section 6, what is required to be established is that it must be
  almost contemporaneous with the acts and there could not be
  an interval which would allow fabrication. In other words, the
  statements ~aid to be admitted as forming part of res gestae
  must have been made contemporaneously with the act or
D immediately thereafter.

         36. Admittedly, she had met her mother Narayani and
    sister soon after the occurrence, thus, they could have been the
    best res gestae witnesses, still the prosecution did not think it
E proper to get their statements recorded. This shows the
  · negligent and casual manner in which prosecution had
    conducted the investigation then the trial. This lacunae has not
    been explained by the prosecution. The prosecution has not
    tried to complete this mssing link so as to prove it, beyond
F shadow of doubt, that it was Appellant who had committed the
    said offences.

       37. Learned Single Judge of the High Court, on the same
  set of evidence has acquitted two accused, without assigning
  any cogent, valid or specific reasons for it whereas on the same
G very set of evidence, the Appellant has been found guilty. Why
  the same benefit could not have been bestowed to the Appellant
  has not been dealt with specifically in the impugned judgment.

        38. Prosecution also adopted a peculiar mode in the case
    as the first statement of prosecutrix was recorded under
H
 . KRISHAN KUMAR MALIK v. STATE OF HARYANA                      795
             [DEEPAK VERMA, J.]

Section 164 of the Cr.P.C. on 27.06.1994 before Judicial                A
Magistrate, First Class, Kurukshetra. Only thereafter on
28.06.2004, her further statement under Section 161 of the
Cr.P .C. was recorded.

     39. In fact, the procedure should have been otherwise. This
further shows that right from the beginning the prosecution was
                                                                        8
doubtful on the trustworthiness of the prosecutrix herself.
Precisely that was the reason that she was first bound down
by her statement under Section 164 of the Cr.P.C.

     40. The Appellant was also examined by the doctor, who             C
had found him capable of performing sexual intercourse. In the
undergarments of the prosecutrix, male semen were found but
these were not sent for analysis in the forensic laboratories
which could have conclusively proved, beyond any shadow of
doubt with regard to the commission of offence by the Appellant.        o
This lacuna on the part of the prosecution proves to be fatal
and goes in favour of the Appellant.

     41. It is pertinent to mention here that Appellant is a
physically handicapped person to the extent of 55% as per               E
Doctor's Report, and this fact is not controverted by the
prosecution. This much of handicap of any person would be
easily noticeable, which Appellant failed to mention at all. In fact,
this would have been much better identification of the Appellant,
which the prosecutrix did not mention at all.
                                                                        F
     42. On account of aforesaid shortcomings, irregularities
and lacuna on the part of the prosecution, in our considered
opinion, it will not be safe to convict the Appellant.

     43. With regard to the matching of the semen, we find it
from Taylor's 2nd·Edn. (1965) Principles and Practice of Medical        G
Jurisprudence as under:-

     "Spermatozoa may retain vitality (or free motion) in the
     body of a woman for a tong period, and movement should
                                                                        H
     796      SUPREME COURT REPORTS                 (2011) 8 S.C.R.


A          always be looked for in wet specimens. The actual time
           that spermatozoa may remain alive after ejaculation cannot
           be precisely defined, but is usually a matter of hours.
           Seymour claimed to have seen movement in a fluid as
           much as 5. days old. The detection of dead spermatozoa
B          in stains may be made at long periods after emission,
           when the fluid has been allowed to dry. Sharpe found
           identifiable spermatozoa often after 12 months and once
           after a period of 5 years. Non-motile spermatozoa were
           found in the vagina after a lapse of time which must have
           been 3 and could have been 4 months."
c
         44. Had such a procedure been adopted by the
     prosecution, then it would have been a foolproof case for it and
     against the Appellant.

.D     45. Now, after the incorporation of Section 53 (A) in the
  Criminal Procedure Code, w.e.f. 23.06.2006, brought to our
  notice by learned counsel for the Respondent-State, it has
  become necessary for the prosecution to go in for DNA test in
  such type of cases, facilitating the prosecution to prove its case
E against the accused. Prior to 2006, even without the aforesaid
  specific provision in the Cr.P.C. prosecution could have still
  resorted to this procedure of getting the DNA test or analysis
  and matching of semen of the Appellant with that found on the
  undergarments of the prosecutrix to make it a fool proof case,
F but they did not do so, thus they must face the consequences.

       46. We have also gone through the orders of dismissal
  pased by this Court in Crl.M.P. No. 9646 on 15.06.2009 as also
  of the Review Petition dated 05.11.2009 filed by Smt. Hardevi.
  Admittedly, the said orders passed in the SLP and Review
I
G Petition by this Court did not assign any reasons for the
  dismissal, thus it would not be proper and safe for us to place
  reliance thereon.

        47. Thus, looking to the matter from all angles, we are of
:-1 the considered opinion that the conviction of the Appellant
  KRISHAN KUMAR MALIK v. STATE OF HARYANA                      797
             [DEEPAK VERMA, J.]

cannot be upheld.                                                      A

      48. Thus, appeal is hereby allowed. Judgment and order
of conviction as recorded by the trial court and confirmed by
learned Single Judge of the High Court qua the appellant are
hereby set aside and quashed. The Appellant is acquitted of            8
all the charges.

     49. He be set at liberty forthwith if not required in any other
criminal case.

8.8.B.                                           Appeal allowed.       C