Supreme Court of India
MD.ALL @ GUDDUversusSTATE OF U.P.
- Citation
- 2015 INSC 190
- Decided
- 10 March 2015
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The Supreme Court held that the High Court's conclusions were manifestly perverse and unsupportable, the conviction was erroneous, and the appeals were allowed.
Summary
The appellants were convicted by the trial court and the Allahabad High Court for kidnapping and rape under IPC sections 363, 366 and 376 based largely on the testimony of the prosecutrix and her mother. The FIR was lodged eleven days after the alleged kidnapping, and the mother failed to file a missing report, raising doubts about the credibility of the prosecution's version. The trial court and High Court did not properly appreciate the lack of corroborative evidence, the unexplained delay, the non‑examination of key witnesses, and the medical report showing no injuries. On a special leave appeal under Article 136, the Supreme Court held that the High Court's findings were manifestly perverse and unsupportable by the evidence, and that the conviction was therefore erroneous. The appeals were allowed, the judgments of conviction and sentence were set aside, and the appellants were discharged.
Issues considered
- The propriety of convicting the accused under sections 363, 366 and 376 of the IPC on the basis of the prosecutrix's testimony despite an eleven‑day delay in filing the FIR.
- Whether the High Court's appreciation of evidence can be reviewed in a special leave appeal under Article 136 of the Constitution.
- The impact of the delay in lodging the FIR, non‑examination of witnesses and medical evidence on the credibility of the prosecutrix.
- The duty of an appellate court to re‑appraise evidence in criminal appeals where the findings of fact are perverse or unsupportable.
Legislation cited
- Code of Criminal Procedure, 1973s. 164, s. 313
- Constitution of Indias. 136
- Indian Evidence Act, 1872s. 114-A
- Indian Penal Code, 1860s. 363, s. 366, s. 376
Subjects
Article 136criminal appealevidence appraisalFIR delayrape convictionprosecutrix credibilityIPC 363IPC 366IPC 376conviction set aside
Judgment
[2015) 3 S.C.R. 416
A MD.ALl@GUDDU
v.
STATE OF U.P.
B " (Criminal Appeal No. 2238 OF 2010)
MARCH 10, 2015
[DIPAK MISRA AND N.V. RAMANA, JJ.]
c
Penal code, 1860-ss. 363, 366 and 376- Conviction
under, by courts below- On appeal, held: The accused were
convicted without proper appreciation of evidence - In view
of the unexplained delay in lodging FIR, non-examination of
D witness, the associated circumstances and the medical
evidence, the testimony of the prosecutrix cannot be treated
as so natural and truthful to inspire confidence - The accused
were erroneously convicted.
E Constitution of India, 1950 - Art. 136 - Criminal
appeal by special leave - Scope of- Held: In such appeal,
Supreme Court normally does not appreciate evidence and
go into the question of credibility of witness, except where
the conclusions recorded by High Court are manifestly
F perverse and unsupportable by the evidence on record.
Allowing the appeals, the Court
HELD: 1. In an appeal under Article 136 of the
G Constitution, this Court does not normally appreciate the
evidence by itself and go into the question of credibility
of witness. The assessment of the evidence by the High
Court is accepted as final, except where the conclusions
recorded by the High Court are manifestly perverse and
H unsupportable by the evidence on record. [Para 15] (427-
416
MD. ALl@GUDDU v. STATE OF U. P. 417
F-H; 428-A] A
Arunachalam v. P.S.R. Saqhanatha and Anr. 1979 (3)
SCR 482: (1979) 2 SCC 297; State of U.P. v. Babu/
Nath 1994 (2) Suppl. SCR 598: (1994) 6 sec 29;
Ganga Kumar Srivastava v. State of Bihar Ganga B
Kumar Srivastava v. State of Bihar (2005) 6 SCC 211;
Alamelu and Another v. State, represented by Inspector
of Police 2011 (2) SCR 147: (2011) 2 SCC 385-relied
on.
c
2. The conclusions arrived at by the High Court
in the present case are totally unsupportable on the basis
of the evidence on record. There is no proper
appreciation of evidence by trial court and definitely the
High Court has failed to exercise its appellate jurisdiction D
in proper perspective as is expected from it in law. [Paras
16 and 17] [428-B]; [429-D-E]
Kamlesh Prabhudas Tanna v. State of Gujarat 2013
(9) SCR 257: (2013) 15 SCC 263; Padam Singh v. E
State ofU.P. 1999 (5) Suppl. SCR59 = (2000) 1
SCC 621; Rama v. State of Rajasthan (2002) 4 SCC
571; Iqbal Abdul Samiya Malek v. State of Gujarat 2012
=
(8) SCR 1012 (2012) 11SCC312; Padam Singh v.
State of U.P. 1999 (5) Suppl. SCR 59: (2000) 1 SCC F
621; Bani Singh v. State of U.P. 1996 (3) Suppl. SCR
247 : (1996) 4 SCC 720; Majjal v. State of Haryana
(2013) 6 sec 798 - relied on.
3. FIR was lodged almost after expiry of eleven G
days alleging the factum of kidnapping by the accused
persons. In rape cases, the delay in filing the FIR by the
prosecutrix or by the parents in all circumstance is not
of significance such delay would depend upon facts of H
418 SUPREME COURT REPORTS [2015] 3 S.C.R.
A each case, regard being had to the trauma suffered by
the prosecutrix and various other factors. In the present
case, the prosecutrix was missing from home. In such a
situation, it was a normal expectation that either the
mother (PW2) or the brother would have lodged a
B missing report at the police station. The same was not
done. This action of PW-2 really throws a great challenge
to common sense. No explanation has been offered for
such delay. In the absence of any explanation, it gives
C rise to a sense of doubt. That apart, the factum that the
appellant informed the mother of the victim that he had
left the prosecutirx at the door of her house also does
not command acceptance. The recovery of the
prosecutrix by the brother and her friends also creates
D a cloud of suspicion. Therefore, the prosecution version
that one 'A' had informed the brother of the prosecutirx
that his sister was at his place but for reasons best
known to the prosecution, 'A' has not been examined.
That apart, the persons who were accompanying the
E brother have also not been examined by the
prosecution. Thus, the manner of recovery of the
prosecutrix from the house of 'fJ( remains a mystery.
[Paras 16 and 20) [428-B-C, F-G; 432-D-G]
F Rajesh Patel v. State of Jharkhand 2013 (2) SCR
411 : (2013) 3 sec 791- relied on.
4. On the basis of the sole testimony of the
prosecutrix, if it is unimpeachable and beyond reproach,
G a conviction can be based. The grammar of law permits
the testimony of a prosecutrix can be accepted without
any corroboration without material particulars, for she
has to be placed on a higher pedestal than an injured
witness. But when a Court, on studied scrutiny of the
H
MD. ALI @GUDDU v. STATE OF U. P. 419
evidence finds it difficult to accept the version of the A
prosecutrix, because it is not unreproachable, there is
requirement for search of such direct or circumstantial
evidence which would lend assurani:e to her testimony.
The present case would show, that the testimony of the
prosecutrix does not inspire confidence, and the B
circumstantial evidence remotely do not lend any
support to the same. In the absence of both, the trial
Judge has erroneously convicted the accused-
appellants for the alleged offences and the High Court C
has fallen into error, without re-appreciating the material
on record, by giving the stamp of approval to the same.
It has been borne out from the material on record that
she had travelled from place to place and she was
ravished number of times. Under these circumstances, D
the medical evidence gains significance, for the
examining doctor has categorically deposed that there
are no injuries on the private parts. The delay in FIR, the
non-examination ofthe witnesses, the testimony of the
prosecutrix, the associated circumstances and the E
medical evidence, leave a mark of doubt to treat the
testimony of the prosecutrix as so natural and truthful
to inspire confidence. The evidence of the prosecutrix
is not of such quality which can be placed reliance upon.
[Para 21] [432-H; 433-A-H; 434-A-B] F
Case Law Reference
1979 (3) SCR 482 relied on. Para 12
G
1994 (2) Suppl. SCR 598 relied on. Para 14
(2005) s sec 211 relied on. Para 14
2011 (2) SCR 147 relied on. Para 15
H
420 SUPREME COURT REPORTS [2015] 3 S.C.R.
A 2013 (2) SCR 411 relied on. Para 16
2013 (9) SCR 257 relied on. Para 17
1999 (5) Suppl .•scR 59 relied on. Para 17
B (2002) 4 sec 571 relied on. Para 18
2012 (8) SCR 1012 relied on. Para 18
1999 (5) Suppl. SCR 59 relied on. Para 18
c
1996 (3) Suppl. SC~ 247 relied on. Para 18
(2013) 6 sec 79P relied on. Para 18
CRIMINALAPPELLATE JURISDICTION: Criminal
D Appeal No. 2238 of 2010.
From thr~ Judgment and Order dated 25.03.2009 of
the High Couri at Allahabad in Cr. Appeal No. 602 of 2006.
E WITH
Crl. A. Nos. 425 of 2015 and 636 of 2012
L.ajja Ram,Ashok Kumar Gupta II, for the Appellant.
F Ratnakar Dash, Abhisth Kumar, Archana Singh for the
Resriondent. ·
The Judgment of the Court was delivered by
G DIPAK MISRA, J. 1. Leave granted in SLP (Crl.) No.
9896 of 2011.
2. The present appeals are directed against the
common judgment and order dated 25.03.2009 passed by
H the High Court of Judicature at Allahabad in Criminal Appeal
MD. ALI @GUDDU v. STATE OF U. P. 421
[DIPAK MISRA, J.]
No. 602 of 2006 and Criminal Appeal No. 863 of 2006 whereby A
the learned Single Judge has given the stamp of approval to
the judgment and order dated 30.01.2006 passed by the
learned Additional Sessions Judge/F.T.C., Hapur, District
Ghaziabad whereunder he had convicted the appellants under
Section 363, 366 and 3761.P.C. and sentenced each of them B
to undergo three years rigorous imprisonment under Section
363 IPC and to pay a fine of Rs.2,000/-with a default clause,
five years rigorous imprisonment and to pay a fine of Rs.3,000/
- under Section 366 IPC and ten years rigorous imprisonment C
and to pay a fine of Rs.5,000/~ under Section 376 IPC with the
default sequitur. All the sentences were directed to run
concurrently.
3. The prosecution case, as has been unfurled, is that
0
a written report was filed by the complainant, Smt. Aneesa,
PW-2, on 3.12.1996 on the allegation that on 22.11.1996,
around midnight, her daughter, Gulistan, PW-1, aged about
14 years, went out of her house to answer the call of nature but
did not return for a considerable time. Being anxious, she E
went in search of her and at that time Ali Waris, one of the
appellants herein, informed her that he had left her daughter at
his door. Thereafter, PW-2 and his son Abrar, PW-4, searched
for her in the neighbourhood as well as amongst the relatives
but as it turned out to be an exercise in futility, she sensed F
some foul play and eventually informed the police thatAli Waris
and Mohammad Ali @ Guddu had kidnapped her daughter.
After the criminal law was set in motion, the investigating
agency commenced the search of the victim. As the factual
matrix would uncurtain, Abrar had along with co-villagers, G
namely, Arif s/o Md. Rafi, Zulfi, Papal, Shafiq and others had
gone in search of his sister, they had reached village Loni and
Arif s/o Azam Khan brought Gulistan from a house and handed
over to him. All of them along with Gulistan went to the police H
422 SUPREME COURT REPORTS [2015] 3 S.C.R.
A station on 18.1.1997 and PW-2 and Gulistan, PW-1, submitted
an application at the police station Dhaulana .. The statement
of the victim was recorded under Section 164 of the Code of
Criminal Procedure. The investigating agency sent the victim
for medical examination, recorded the statements of seven
8 witnesses, prepared the site plan and after completing other
formalities placed the chargesheet against eight accused
persons, namely, Ali Waris, Md. Ali, Mehmood, Allahrakha,
Sirajoo, Fazal, Shamshad and Sarfraz for the offences
C punishable under Sections 363, 366, 368 and 376, IPC before
the competent Court which in turn committed the matter to the
Court of Session.
4. The accused persons abjured their guilt and pleaded
false implication due to political rivalry relating to Gram Sabha
0
Pradhan elections.
5. In course of trial, the prosecution, to bring home the
charges, examined seven witnesses, namely, Gulistan, PW-
1, the prosecutrix, Anisha, PW-2, the informant and the mother
E of the victim, LiyaqatAli, PW-3, Abrar, PW-4, the brother of
the victim, Maqsood, PW-5, Mahavir Singh, PW-6 and Dr.
Rekha Singh, PW-7 who had examined the victim. Be it noted,
PWs 3 and 5 have turned hostile.
F 6. The accused persons in their statements recorded
under Section 313 of CrPC denied their involvement in the
occurrence. Their plea was that they had supported Ali Waris
in village Pradhan election and the rival party Arif, a relative of
G PWs 1, 2 and 4 was defeated. The defence in order to establish
its plea examined one witness, namely, Jaggi Rana, DW-1.
7. The learned trial Judge on appreciation of evidence
brought on record came to hold that the prosecution had been
H able to establish the charges against four accused persons,
MD. ALI@ GUDDU v. STATE OF U. P. 423
[DIPAK MISRA, J.]
namely, Ali Waris, Mohd.Ali@Guddu, Mehmood and Fazal A
for the offences under Sections 366, 368 and 376 of l.P.C.,
but had failed to bring home charges against other accused
persons and on that basis convicted and imposed the
sentence as has been stated hereinbefore.
B
8. Being aggrieved by the aforesaid judgment of
conviction and order of sentence, Fazal Mohd. Ali and
Mehmood preferred Criminal Appeal No. 602 of 2006 and Ali
Waris preferred an independent Appeal being Criminal Appeal
No. 863 of 2006. It is worthy to state here that the State had C
not assailed the judgment of acquittal of the four accused
persons. The High Court appreciated the evidence and by
placing reliance on the testimony of PWs 1, 2 and 4 had opined
that the findings recorded by the learned trial Judge was D
flawless. Being of the said view, it affirmed the judgment of
conviction and the order of sentence.
8. We have heard Mr. Lajja Ram, learned counsel for
the appellants and Mr. Ratnakar Dash, learned senior counsel
for the State. E
9. It is submitted by the learned counsel for the
appellants that the learned trial Judge as well as the High Court
has absolutely gone wrong by coming to hold that the age of
the victim was less than eighteen years on the date of F
occurrence. It is his further submission that the appreciation
of evidence by the trial Court and the High Court is totally
perverse inasmuch as in the obtaining factual matrix, the
evidence of the prosecution witnesses could not have been G
remotely given credence to. Learned counsel has seriously .
criticized the delay in lodging of the FIR, regard being had to
the unnatural facet, for PW-2 had lodged the FIR after 11 days
whereas any reasonable person would have immediately
informed the police about the missing of his/her daughter. It is H
424 SUPREME COURT REPORTS (2015] 3 S.C.R.
A canvassed by him that the entire allegations of the prosecution
are built on an unacceptable plinth and regard being had to
the evidence brought on record which is completely sketchy,
the conviction could not have been recorded. Mr. Lajja Ram
has submitted that the medical evidence does not support the
B prosecution version and the present case being not one where
the evidence of the prosecutrix is so unmatchable that solely
on the basis of her testimony and the conviction can be
recorded, said medical evidences gains significance.
C Learned counsel would submit that the testimony of the victim,
the conduct of the mother and the nature of allegations made
against the accused persons lead to a definite conclusion that
the entire story put forth by the prosecution is wholly incredible
and the learned trial Judge has lent credence to the testimony
o on assumed reasoning and the High Court has concurred with
the same without proper appreciation of the evidence which
is the obligation of the appellate Court hearing a criminal
appeal.
E 9. Mr. Ratnakar Dash, learned senior counsel
appearing for the State in his turn would contend there has
been a concurring finding of facts with regard to the age and
there is no justification or warrant to interfere with the same.
Learned senior counsel would submit that the prosecutrix was
F under constant fear as has been stated by her and hence, under
the obtaining circumstances there is no reason not to believe
her testimony and unsettle the conviction. It is urged by him
that findings recorded by the trial Court which have been
concurred with by the High Court, by no stretch of imagination,
G can be called perverse warranting interference by this Court.
10. To appreciate the rival submissions raised at the
bar, we have bestowed our anxious consideration to weigh
and analyse the evidence brought on record for the purpose
H
MD. ALI@ GUDDU v. STATE OF U. P. '425
[DIPAK MISRA, J.]
whether testimony of the victim deserves acceptance and A
ultimately the prosecution case deserves acceptation. Though
the learned counsel for the parties have urged the point with
regard to the age of the prosecutrix, the same need not be
adverted to. Suffice it to mention that PW-2, the mother of the
victim, had alleged that her daughter was fourteen years of B
age on 22.11.1996 when she was kidnapped. The ossification
test has pointed out that she was approximately eighteen years
of age. The learned trial Judge has opined that she was less
than eighteen years and the High Court has accepted the C
same. The said issue would gain prominence, if the story set
forth by the prosec,:ution is accepted to be credible, for then
only the question of consent by the prosecutrix for the offences
would arise. If the entire prosecution story is discarded as
being incredulous, then the said aspect would certainly melt D
into insignificance.
11. Having stated so, we shall proceed to deal with the
pertinent facts in this regard. Prior to that it is essential to
address the issue of propriety and the conceptual parameters E
or conceptions based on well accepted norms and paradigms
to exercise the power of this Court under Article 136 of the
Constitution.
12. In Arunachalam v. P.S.R. Sadhanatha andAnr. 1 F
it has been expressed thus:
"The power is plenary in the sense that there are no words
in Article 136 itself qualifying that power. But, the very
nature of the power has led the court to set limits to itself
G
within which to exercise such power. It is now the well-
established practice of this Court to permitthe invocation
of the power under Article 136 only in very exceptional
1 (1979) 2 sec 297
H
426 SUPREME COURT REPORTS (2015] 3 S.C.R.
A circumstances, as when a question of law of general
public importance arises or a decision shocks the
conscience of the court. But, within the restrictions
. imposed by itself, this Court has the undoubted power to
interfere even with findings offact, making no distinction
B between judgments of acquittal and conviction, if the High
Court, in arriving at those findings, has acted 'perversely
or otherwise improperly'."
(emphasis supplied].
c
13. In State of U.P. v. Babu/ Nath2, a two Judge Bench
has laid down thus:
"At the very outset we may mention that in an appeal
D under Article 136 of the Constitution this Court does not
normally reappraise the evidence by itself and go into /
the question of credibility of the witnesses and the
assessment of the evidence by the High Court is
accepted by the Supreme Court as final unless, of
E course, the appreciation of evidence and finding is
vitiated by any error of law of procedure or found contrary
to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of
the High _Court are manifestly perverse and
F unsupportable from the evidence on record."
14. In Ganga Kumar Srivastava v. State of Bihar·
the Court after referring to series of decisions on exercise of
the power of this Court under Article 136 of the Constitution
G culled out following principles:
"(i) The powers of this Court under Article 136 of the
2 (1994) e sec 29
3 c2oosi e sec 211
H
MD. ALI@ GUDDU v. STATE OF U. P. 427
[DIPAK MISRA, J.]
Constitution are very wide but in.criminal appeals this A
Court does not interfere with the concurrent findings of
fact save in exceptional circumstances.
(ii) It is open to this Court to interfere with the findings of
fact given by the High Court, ifthe High Court has acted B
perversely or otherwise improperly.
(iii) It is open to this Court to invoke the power under
Article 136 only in very exceptional circumstances as
and when a question of law of general public importance c
arises or a decision shocks the conscience of the Court.
(iv) When the evidence adduced by the prosecution fell
-short of the test of reliability and acceptability and as
such it is highly unsafe to act upon it. o
(v) Where the appreciation of evidence and finding is
vitiated by any error of law of procedure or found contrary
to the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions E
of the High Court are manifestly perverse and
unsupportable from the evidence on record."
15. In Alamelu and Another v. State, represented F
By Inspector of Police", it has been stated that even though
the powers of this Court under Article 136 of the Constitution
are very wide, but in criminal appeals, this Court would not
iriterfere with the concurrent findings of fact save in very
exceptional cases. In an appeal under Article 136 of the G
Constitution, this Court does not normally· appreciate the
evidence by itself and go into the question of credibility of
witness. Elaborating further, the Court has opined that the
4 c2011i 2 sec 3ss
H
428 SUPREME COURT REPORTS [2015] 3 S.C.R.
A assessment of the evidence by the High Court is accepted as
final except where the conclusions recorded by the High Court
are manifestly perverse and unsupportable by the evidence
on record.
B 16. Keeping the aforesaid principles in view, we shall
proceed to scrutinize the materials on record, for we are
convinced that the conclusions arrived at by the High Court
are totally unsupportable on the basis of the evidence on record.
For the aforesaid purpose, first we shall advert to the issue of
C lodging of the First Information Report. As is demonstrated,
the victim missed from the house on 22.11.1996 but the mother
lodged the FIR on 3.12.1996 almost after expiry of eleven days
alleging the factum of kidnapping by the accused persons,
D namely, Ali Waris and Md. Ali @ Guddu. It is interesting to
note that the mother, had alleged that Ali Waris had left the girl
at her door steps. In such a circumstance, if nothing else, the
PW-2, the mother, who is expected to have necessitous
concern, could have gone to the police station to lodge a
E missing report which could have prompted the investigation
officer to act. It baffles the commonsense that the mother after
searching in the neighbourhood as well as amongst the
relatives still, for some unfathomable reason that defeats the
basic human prudence approached the police station quite
F belatedly. It is apt to mention here that in rapes cases the
delay in filing the FIR by the prosecutrix or by the parents in all
circumstance is not of significance. The authorities of this
Court have granted adequate protection/allowance in that
aspect regard being had to the trauma suffered, the agony
G and anguish that creates the turbulence in the mind of the victim,
to muster the courage to expose oneself in a conservative
social milieu. Sometimes the fear of social stigma and on
occasions the availability of medical treatment to gain normalcy
H and above all the psychological inner strength to undertake
MD. ALI@ GUDDU v. STATE OF U. P. 429
[DIPAK MISRA, J.]
such a legal battle. But, a pregnant one, applying all these A
allowances, in this context, it is apt to refer to the
pronouncement in Rajesh Patel v. State of Jharkhand5
wherein in the facts and circumstances of the said delay of 11
days in lodging the FIR with the jurisdictional police was treated
as fatal as the explanation offered was regarded as totally B
untenable. This Court did not accept the reasoning ascribed
by the High Court in accepting the explanation as same was
fundamentally erroneous.
17. Coming to the case at hand, after the mother lodged C
the Fl R implicating Ali Waris and Md. Ali, the brother, PW-2,
with his friends recovered the prosecutrix from village Loni and
she was examined under Section 164, CrPC. As is evident,
she had left home on 22.11.1996. As alleged, she was fourteen
years of age. The trial court on the basis of radiological test D
has opined that she was below eighteen years of age and the
High Court has accepted the same. The factum of age only if
the findings recorded by the trial court and High Court are
accepted, for as we find, there is no proper appreciation of E
evidence by trial court and definitely the High Court has failed
to exercise its appellate jurisdiction in proper perspective as
is expected from it in law. In Kamlesh Prabhudas Tanna v.
State ofGujarat6dealing with the duty of the appellate court,
this Court observed:- F
"At this juncture, we are obliged to state that though it
may be difficult to state that the judgment suffers from
sans reasons, yet it is not at all difficult to say that the
reasons ascribed are really apology for reasons. If we G
allow ourselves to say so, one may ascribe certain
reasons which seem to be reasons but the litmus test is
s c2013) 3 sec 1s1
s (2013) 1s sec 263
H
430 SUPREME COURT REPORTS [2015] 3 S.C.R.
A to give seemly and condign reasons either to sustain or
overturn the judgment. The filament of reasoning must
logically flow from requisite analysis, but, unfortunately,
the said exercise has not been carried out. In this context,
we may refer with profit to the decision in Padam Singh
B v. State of U.P. 7 , wherein a two-Judge Bench, while
dealing with the duty of the appellate court, has expressed
thus:
"2 . ... It is the duty of an appellate court to look into the
c evidence adduced in the case and arrive at an
independent conclusion as to whether the said evidence
can be relied upon or not and even if it can be relied
upon, then whether the prosecution can be said to have
been proved beyond reasonable doubt on the said
D
evidence. The credibility of a witness has to be adjudged
by the appellate court in drawing inference from proved
and admitted facts. It must be remembered that the
appellate court, like the trial court, has to be satisfied
E affinnatively that the prosecution case is substantially
true and the guilt of the accused has been proved
beyond all reasonable doubt as the presumption of
innocence with which the accused starts, continues right
through until he is held guilty by the final Court ofAppeal
F and that presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court."
18. In Rama v. State of Rajasthan 8 the Court has
expressed about the duty of the appellate court thus:
G
"4 . ... It is well settled that in a criminal appeal, a duty is
enjoined upon the appellate court to reappraise the
evidence itself and it cannot proceed to dispose of the
H 1 (2000J 1 sec s21
s (2002) 4 sec s11
MD. ALI@ GUDDU v. STATE OF U. P. 431
[DIPAK MISRA, J.]
appeal upon appraisal of evidence by the trial court A
alone especially when the appeal has been already
admitted and placed for final hearing. Upholding such
a procedure would amount to negation of valuable right
of appeal of an accused, which cannot be permitted
under law." B
Similar principles have been reiterated in Iqbal Abdul
Samiya Malek v. State of Gujarati, Padam Singh v. State
of U.P. 10 and Bani Singh v. State of U.P. 11
c
19. A three-Judge Bench in Majjal v. State of
Haryana 12 has ruled thus:
"It was necessary for the High Court to consider whether
the trial court's assessment of the evidence and its D
opinion that the appellant must be convicted deserve to
be confirmed. This exercise is necessary because the
personal liberty of an accused is curtailed because of
the conviction. The High Court must state its reasons
why it is accepting the evidence on record. The High E
Court's concurrence with the trial court's view would be
acceptable only if it is supported by reasons. In such
appeals it is a court of first appeal. Reasons cannot be
cryptic. By this, we do not mean that the High Court is
expected to write an unduly long treatise. The judgment F
may be short but must reflect proper application of mind
to vital evidence and important submissions which go
to the root of the matter."
20. The obtaining factual matrix has to be appreciated G
9 (2012) 11 sec 312
10 (2000) 1 sec 621
11 (1996) 4 sec 120
12 (2013) 6 sec 798
H
432 SUPREME COURT REPORTS (2015) 3 S.C.R.
A on the touchstone of the aforesaid parameters. Be it clearly
stated here delay in lodging FIR in cases under Section 376
IPC would depend upon facts of each case and this Court has
given immense allowance to such delay, regard being had to
the trauma suffered by the prosecutrix and various other factors,
B but a significant one, in the present case, it has to be
appreciated from a different perspective. The prosecutrix was
missing from home. In such a situation, it was a normal
expectation that either the mother or the brother would have
C lodged a missing report at the police station. The same was
not done. This action of PW-2 really throws a great challenge,
to common sense. No explanation has been offered for such
delay. The learned trial Judge has adverted to this facet on an
unacceptable backdrop by referring to the principle that
o prosecutrix suffered from trauma and the constraint of the social
stigma. The prosecutrix at that time was nowhere on the
scene. It is the mother who was required to inform the police
about missing of her grown up daughter. In the absence of
any explanation, it gives rise to a sense of doubt. That apart,
E the factum that the appellant informed the mother of the victim
that he had left the prosecutirx at the door of her house also
does not command acceptance. The recovery of the
prosecutrix by the brother and her friends also creates a cloud
of suspicion. We are not inclined to believe the prosecution
F version as has been projected that one Arif had informed the
brother of the prosecutirx that his sister was at his place but
for reasons best known to the prosecution, Arif has not been
examined. That apart, the persons who were accompanying
G the brother have also not been examined by the prosecution.
Thus, the manner of recovery of the J..;rosecutrix from the house
of Arif remains a mystery.
21. Be it noted, there can be no iota of doubt that on
H the basis of the sole testimony of the prosecutrix, if it is
MD. ALI@ GUDDU v. STATE OF U. P. 433
[DIPAK MISRA, J.]
unimpeachable and beyond reproach, a conviction can be A
based. In the case at hand, the learned trial Judge as well as
the High Court have persuaded themselves away with this
principle without appreciating the acceptability and reliability
of the testimony of the witness. In fact, it would not be
inappropriate to say that whatever the analysis in the impugned B
judgment, it would only indicate an impropriety of approach.
The prosecutrix has deposed that she was taken from one
place to the other and remained at various houses for almost
two months. The only explanation given by her is that she was C
.threatened by the accused persons. It is not in her testimony
that she was confined to one place. In fact, it has been borne
out from the material on record that she had travelled from
place to place and she was ravished number of times. Under
these circumstances, the medical evidence gains significance, o
for the examining doctor has categorically deposed that there
are no injuries on the private parts. The delay in FIR, the non-
examination of the witnesses, the testimony of the prosecutrix,
the associated circumstances and the medical evidence, leave
a mark of doubt to treat the testimony of the prosecutrix as so E
natural and truthful to inspire confidence. It can be stated with
certitude that the evidence of the prosecutrix is not of such
quality which can be placed reliance upon. True it is, the
grammar of law permits the testimony of a prosecutrix can be
accepted without any corroboration without material particulars, F
for she has to be placed on a higher pedestal than an injured
witness, but, a pregnant one, when a Court, on studied scrutiny
of the evidence finds it difficult to accept the version of the
prosecutrix, because it is not unreproachable, there is G
requirement for search of such direct or circumstantial
evidence which would lend assurance to her testimony. As
the present case would show, her testimony does not inspire_
confidence, and the circumstantial evidence remotely do not
lend any support to the same. In the absence of both, we are H
434 SUPREME COURT REPORTS [201~] 3 S.C.R.
A compelled to hold that the learned trial Judge has erroneously
convicted the accused-appellants for the alleged offences and
the High Court has fallen into error, without re-appreciating the
material on record, by giving the stamp of approval to the same.
B 22. Resultantly, the appeals are allowed, judgment of
conviction and order of sentence are set aside and as the
appellants are on bail, they be discharged of their bail bonds.
Kalpana K. Tripathy Appeals allowed.
c
D
E
F
G
H
[2015) 3 S.C.R. 435
DEE PAK A
v.
STATE OF HARYANA
Criminal Appeal No. 65 of2012 B
MARCH 10, 2015
[FAKKIR MOHAMED IBRAHIM KALIFULLA AND
ABHAY MANOHAR SAPRE, JJ.] C
Penal Code, 1860 - s.376 - Punishment for rape -
Rape of a young girl aged 16 years 3 months - Late
disclosure of the incident by the prosecutrix to her mother
since prosecutrix threatened with dire consequences by o
accused - Conviction of accused for the offence punishable
uls. 376 and sentenced to 7 years' RI with fine by the courts
below- On appeal, held: Prosecutrix is a reliable and truthful
witness - Her testimony suffers no infirmity or blemish
whatsoever- Medical evidence supports the commission of E
sexual violence on her - Even the accused did not dispute
the factum of commission of offence by him on the prosecutrix
because his only defence was that the prosecutrix had
consented to the commission of the sexual act- Thus, the
statutory presumption contemplated u/s. 114-A of the F
Evidence Act invoked against the accused rendering him
liable to suffer conviction uls. 376 for commission of offence ·
ofrape on the prosecutrix-Also late disclosure of the incident
by the prosecutrix to her mother and consequently delay in G
filing FIR was natural and satisfactorily explained - Lapses
on the part of the investigating agency not fatal to the
prosecution case - Thus, courts below rightly convicted the
accused - As regards sentencing, lenient view cannot be
taken since the accused was awarded minimum mandatory H
435
436 SUPREME COURT REPORTS [2015] 3 S.C.R.
A sentence of 7 years- Evidence Act, 1872- s. 114-A.
Dismissing the appeal, the Court
HELD: 1.1 The FIR was lodged when the
8 prosecutrix disclosed to her mother of the incident first
time as to what had happened with her hardly two weeks
before the date of disclosure and the mother, in turn,
immediately made a complaint to the police station and
disclosed to the SI, who visited her place on coming to
c know of the incident. The late disclosure of the offence
by the prosecutrix was also well justified by her in her
statement recorded under Section 164 Cr.P.C. and also
in her evidence wherein she said that the appellant had
taken her photographs and had also recorded her talks
D with him on mobile. The accused was, as per her version,
threatening her from raising any kind of alarm with the
use of such evidence in his possession. The conduct of
the prosecutrix, in this regard, therefore, appears to be
most natural. She did not inform the incident immediately
E to the parents and waited for two weeks to eventually
disclose to her mother. [Paras 17, 18] [448-E-H; 445-A-
B]
1.2 The situation in which a young illiterate girl,
F who had just crossed her 16th year and who was
subjected to sexual violence against her will would
immediately react cannot be overlooked. If the
Investigating Officer did not conduct the investigation
G properly in not being able to seize the photographs and
recorded conversation then it could not have been made
a ground to discredit the sworn testimony of the
prosecutrix, which was otherwise found to be
trustworthy and consistent. No one can dispute that the
H prosecutrix had no control over the investigating agency
DEEPAK v. STATE OF HARYANA 437
and nor the lapse on the part of the investigating agency A
could in any manner affect the creditability of the
statement of the prosecutrix. [Paras 20 and21] [445-D-
G]
1.3 The courts below rightly placed reliance on the sworn B
testimony of the prosecutrix on this issue and came to a
just and proper conclusion that having regard to the facts
and circumstances of the case coupled with the
explanation given by the prosecutrix, there was no delay
in lodging the FIR by her mother and even if there was C
some delay then the same was satisfactorily explained.
[Para 22] [445-G-H]; [446-A]
1.4 The prosecutrix, in her sworn testimony, in
clear terms stated that she did not give her consent for D
commission of the act to the appellant and that he
committed the act of sexual violence on her against her
will. The appellant was not able to give any satisfactory
explanation in his statement recorded under Section 313 E
of the Code nor was he able to adduce any defence
evidence to rebut the presumption contained in Section
114-A of the Evidence Act, 1872 against him. So far as
commission of sexual intercourse is concerned, it is
proved with the medical evidence that it was performed F
by the appellant with the prosecutrix. [Para 26][447-D-G]
1.5 In a case of rape, no self- respecting woman
would ever come forward in a court just to make a
humiliating statement against her honour such as is G
involved in the commission of rape on her. The testimony
of the prosecutrix in such cases is vital and unless there
are compelling reasons, which necessitate looking for
corroboration of her statement or where there are
compelling reasons for rejecting of her testimony, there H
438 SUPREME COURT REPORTS [2015] 3 S.C.R.
A is no justification on the part of the court to reject her
testimony. [Para 27) [447-G-H]; [448-A]
1.6 In the instant case, on careful analysis of the
statement of the prosecutrix created an impression on
B the minds that she is a reliable and truthful witness and
her testimony suffers from no infirmity or blemish
whatsoever. That apart, even the medical evidence
supports the commission of sexual violence on her.
Indeed, even the appellant did not dispute the factum of
C commission of sexual intercourse by him on the
prosecutrix because the appellant's only defence was
that since the prosecutrix had consented to the
·commission of the sexual act, no offence of rape was
made out against him. Thus, there is no hesitation in
0
invoking the statutory presumption contemplated under
Section 114-A of the Evidence Act against the appellant
rendering him liable to suffer the conviction under
Section 376 of IPC for commission of offence of rape on
E the prosecutrix. The finding of commission of rape by
the appellant on the prosecutrix, which was rightly
recorded by the two courts below, is upheld. [Para 28,
29, 30) [448-B-H]
F 1,7 The submission that looking to the young age
of the appellant and further he being the first offender
and lastly, the fact that he has already undergone 3 years
1 month in jail, this Court should take some lenient view
in the matter of awarding of the sentence to him, cannot
G be accepted since the appellant has been awarded
minimum mandatory sentence of 7 years for the offence
under Section 376 IPC, which may extend to
imprisonment for life and the fine once the offence the
offence under Section 376 IPC is proved. [Paras 31, 32)
H
DEEPAK v. STATE OF HARYANA 439
[448-H]; [449-A-B] A
Uday vs. State of Karnataka 2003 (2) SCR 231:
(2003) 4 sec 46 - distinguished.
State of Punjab vs. Gurmit Singh & Ors.1996 (1) SCR
B
532: (1996) 2 sec 384 - referred to.
Case Law Reference
1996 (1) SCR
. 532 . Referred to. Para 16
c
2003 (2) SCR 231 Distinguished. Para 34
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 65 of 2012
From the Judgment and Order dated 15.03.2010 of the High D
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 2109-SB of2009
Vijay Panjwani (A.G.) for the Appellant.
E
Bhakti Vardhan Singh (for Kamal Mohan Gupta) for the
Respondent.
The Judgment of the Court was delivered by
F
ABHAY MANOHAR SAPRE, J. 1. This criminal
appeal is filed by the accused against the final order~udgment
dated 15.03.2010 passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No.2109-SB of
2009 which arises out of judgment/order dated 18.08.2009/ G
20.08.2009 passed by the Additional Sessions Judge, Panipat
in Misc. Sessions Case No. 31 of2007.
2. By impugned judgment/order, the High Court upheld
the conviction and sentence of the appellant awarded by the H
440 SUPREME COURT REPORTS (2015] 3 S.C.R.
A Sessions Court for the offence punishable under Section 376
of the Indian Penal Code, 1860 (hereinafter referred to as "IPC")
and sentenced him to undergo rigorous imprisonment for 7.
years and a fine of Rs.5000/- and in default of payment of fine
to undergo rigorous imprisonment for another six months.
B
3. In order to appreciate the issue involved in the
appeal, few relevant facts need mention infra,
4. The prosecutrix (name withheld by us) was a young
c girl aged around 16 years 3 months at the relevant time. She
had no educational background. She was the resident ofVidya
Nand Colony, Panipat and was living with her parents and two
younger sisters and three brothers. Her father, Abid was a
labourer in one factory and her mother was running a small
D grocery shop in their house. The appellant-accused, a young
boy in his twenties was also residing with his family as their
neighbour. He was also running his own grocery shop in his
house.
E 5. On 02.04.2007, Sub Inspector (Sl)-Prithvi Raj of
Police Station Chandni Bagh received information about the
sexual assault on the prosecutrix, who was taken to the General
Hospital, Panipat. After receipt of the information, SI rushed
to the General Hospital, Panipat to find out the details. He
F was told that the prosecutrix was not admitted to the hospital
but was got examined by the doctors. He then collected parcel
of slides, swab of the prosecutrix, samples of tests done on
the prosecutrix and a copy of the MLR and then went to the
G prosecutrix's residence and met her mother, Ruksana on
04.04.2007.
6. Ruksana-the mother of prosecutrix then gave her
statement saying that she has three daughters - the eldest
H being the prosecutrix aged around 14 years. Her husband
DEEPAK v. STATE OF HARYANA 441
[ABHAY MANOHAR SAPRE, J.]
was working as labourer and she was running a small grocery A
shop. She said that the appellant (accused), their neighbour,
entered in their house a few days back in night and when she
saw him, he slipped away. She had complained about this
behavior of appellant to his parents but his parents did not pay
any heed to her complaint. She then said that after some days, B
in their absence, Sajida-wife of Salim, who was living as their
tenant in the same house, came to their house and enticed the
prosecutrix on the pretext that she should talk with the appellant-
accused regarding her love otherwise he would end his life by C
consuming poison. Ruksana further narrated that a fortnight
back, on hearing the noise, she woke up and saw that her
daughter was coming down from the staircase. On being
asked, the prosecutrix did not give any response and avoided
to give answer. However, later on, she told Ruksana (her D
mother) that the appellant had raped her in the night forcefully
without her consent and threatened her not to disclose this
incident to her parents or to anyone else she will have to face
the dire consequences.
E
7. This disclosu~ made by Ruksana led to registration
of FIR No. 144 dated 04.04.2007 in the Police Station Chandni
Bagh, Panipat against the appellant-accused and Sajida, who
as mentioned above, was living as tenant of the prosecutrix's
father in the next room. The statement of the prosecutrix under F
Section 164 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Code") was recorded. Her
ossification test was also got done. The statements of other
witnesses were recorded. The appellant and Sajida were
arrested. The appellant was medically examined. After G
completing the investigation and collecting the necessary
evidence, a charge-sheet was filed against the appellant and
Sajida under Sections 376/506/120-B of IPC.
H
-.
442 SUPREME COURT REPORTS [2015) 3 S.C.R.
A 8. On their appearance, the accused were supplied with
all the documents relied on by the prosecution. The case was
then committed to the Court of Sessions where the court
framed the charges. So far as the appellant and Sajida were
concerned, both were charged for the offence punishable under
B Section 120-B IPC. So far as the appellant was concerned,
he was also charged for the offence punishable under Section
376 IPC. Both the accused pleaded not guilty and claimed
trial.
C 9. With a view to connect the appellant and Sajida with
the crime, the prosecution examined 14 witnesses namely,
Ruksana, the Complainant(PW-1 ), the prosecutrix (PW-2), Dr.
Rahul Diwan (PW-3), Dr. Shashi Garg (PW-4), Dr. Nidhi Kharab
(PW-5), Dr. Ashwani Kumar (PW-6), Ghansham Dass, ASI
D (PW~7), Rajbir Singh, ASI (PW-8), Constable Jagbir Singh
(PW-9), Head Constable Dharam P~I (PW-10), Constable
Joginder (PW-11), Head Constable Dharampal (PW-12),
Prithvi Raj, Inspector (PW-13) and ASI Rajbir Singh (PW-14)
E whereas the defence examined four witnesses, namely, Hawa
Singh, Clerk, Death and Birth, Municipal Council, Panipat as
DW-1, Ashok Kumar Bathla, Senior Supervisor, BSNL,
Panipat as DW-2, Salim as DW-3 and Head Constable
Kuleep as DW-4.
F
10. The Sessions Judge by judgmenUorder dated
18.08.2009/20.08.2009 held that no case of conspiracy was
proved against the appellant and Sajida of any nature and since
involvement of Sajida was not proved in this case, therefore,
G both of them were acquitted of the charge of conspiracy. So
far as the appellant-accused (Deepak) was concerned, it was
held that the prosecution was able to prove the commission of
offence of rape on the. prosecutrix by the appellant and
accordingly he was convicted for the offence punishable under
H
DEEPAK v. STATE OF HARYANA 443
[ABHAY MANOHAR SAPRE, J.)
Section 376 IPC and was sentenced to undergo 7 years' RI A
with a fine amount of Rs.5000/-and in default to undergo further
RI for 6 months.
11. Feeling aggrieved by the said order/judgment, the
appellant filed appeal before the High Court. By impugned B
judgmenUorder, the High Court dismissed the appeal and
upheld the conviction and sentence awarded to the appellant
by the Sessions Court. It is against this judgmenUorder, the
accused-Deepak has filed this appeal by way of special leav_e.
c
12. Learned Counsel for the appellant mainly urged
three submissions. In the first place, he urged that since there
was inordinate delay in filing the FIR of the incident of alleged
rape by the victim or/and her family members, the conviction
of the appellant becomes unsustainable in law and was, D
therefore, liable to be set aside. Secondly, he made his
submission based on the age of the prosecutrix. According to
the learned counsel, since the age of the prosecutrix was above
sixteen, it should have been held to be a yase of consent given E
voluntarily by the prosecutrix rendering the appellant's
conviction bad in law and lastly, the ingredients of rape were
not proved against the appellant, no case of rape within the
meaning of Section 376 of IPC was made out. It is essentially
these three submissions, which were elaborated by the learned F
counsel in his arguments by referring to the contents of the FIR
and the evidence on record.
13. In contra, learned counsel for the respondent-State
supported the reasoning and the conclusion of the courts below G
and contended that the appeal being wholly devoid of merit,
the same deserves dismissal.
14. Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no merit in H
444 SUPREME COURT REPORTS (2015] 3 S.C.R.
A any of the submissions of the learned counsel for the appellant.
15. Coming to the first submission relating to the lodging
of the FIR forthe commission of the offence is concerned, in
our considered opinion, there was no delay in the lodging of
B the FIR either and if at all there was some delay, the same has
not only been properly explained by the prosecution but also
considering the facts and circumstances of the case, it was
natural.
c 16. The Courts cannot overlook the fact that in sexual
offences and, in. particular, the offence of rape and that too on
a young illiterate girl, the delay in lodging the FIR can occur
due to various reasons. One of the reasons is the reluctance
of the prosecutrix or her family members to go to the police
D station and to make a complaint about the incident, which
concerns the reputation of the prosecutrix and the honour of
the entire family. In such cases, after giving very cool thought
and considering all pros and cons arising out of an unfortunate
incident, a complaint of sexual offence is generally lodged
E either by victim or by any member of her family. Indeed, this
has been the consistent view of this Court as has been held in
State of Punjab vs. Gurmit Singh & Ors.[ (1996) 2 SCC
384)].
F 17. Keeping this well settled principle in mind, we find
that the FIR in this case was lodged on 04.04.2007 when the
prosecutrix disclosed to her mother of the incident first time
as to what had happened with her hardly two weeks before
G the date of disclosure and the mother, in tum, immediately made
a complaintto the police station and disclosed to the SI, who
visited her place on coming to know of the incident. The late
disclosure of the offence by the prosecutrix was also well
justified by her in her statement recorded under Section 164
H of the Code and also in her evidence wherein she said that
DEEPAK v. STATE OF HARYANA 445
[ABHAY MANOHAR SAPRE, J.]
the appellant had taken her photographs and had also A
recorded her talks with him on mobile. The accused was, as
per her version, threatening her from raising any kind of alarm
with the use of such evidence in his possession.
18. The conduct of the prosecutrix, in this regard, B
therefore, appears to us to be most natural. She did not inform
the incident immediately to the parents and waited for two
weeks to eventually disclose to her mother. It was for the reason
that the appellant was all along threatening the prosecutrix of
the dire consequences with the use of the evidence, which he C
was having with him against her.
19. We do not agree with the submission of the learned
counsel for the appellant when he contended that since no
efforts were made by the prosecution to file the photographs D
and the recorded conversation of the prosecutrix with the
appellant and, therefore, the prosecutrix's version should not
be relied on.
20. We cannot overlook the situation in which a young E
illiterate girl, who had just crossed her 16th year and who was
subjected to sexual violence against her will would immediately
react.Again, in our considered view, ifthe Investigating Officer
. did not conduct the investigation properly in not being able to
seize the photographs and recorded conversation then it could F
not have been made a ground to discredit the sworn testimony
of the prosecutrix, which was otherwise found to be trustworthy
and consistent.
21. No one can dispute that the prosecutrix had no G
control over the investigating agency and nor the lapse on the
part of the investigating agency could in any manner affect the.
creditability of the statement of the prosecutrix.
H
•
446 SUPREME COURT REPORTS (2015] 3 S.C.R.
A 22. In our considered opinion, the courts below,
therefore, rightly placed reliance on the sworn testimony of the
prosecutrix on this issue and came to a just and proper
conclusion that having regard to the facts and circumstances
of the case coupled with the explanation given by the
B prosecutrix, there was no delay in lodging the FIR by her mother
and even if there was some delay then, in our considered view,
the same was satisfactorily explained.
23. This takes us to the next two submissions of the
C learned counsel for the appellant. The courts below have held
that the age of the prosecutrix on the date of commission of
the offence was around 16 years and 3 months. Assuming this
finding to be proper, we are of the considered opinion that
these st,Jbmissions have no merit in the light of the statutory
0
presumption contained in Section 114-Aofthe Evidence Act,
1872 against the appellant, which in our· opinion remain
unrebutted at the instance of the appellant.
24. Section 114-A of the Indian Evidence Act was
E brought on statute book with effect from 25.12.1983 by the
Criminal Law (Amendment) Act, 1983. It reads as under:
"114-A. Presumption as to absence of consent in
certain prosecutions for rape - In a prosecution for
F rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section
(2) of Section 376 of the Indian Penal Code (45 of
1860),.where sexual intercourse by the accused is
proved and the question is whether it was without
G
the consent of the woman alleged to have been
raped and she states in her evidence· before the
Court that she did not consent, the Court shall
presume that she did not consent."
H
DEEPAK v. STATE OF HARYANA 447
[ABHAY MANOHAR SAPRE, J.]
25. In order to enable the court to draw presumption as A
contained in Section 114-Aagainstthe accused, it is necessary
to first prove the commission of sexual intercourse by the
accused on the prosecutrix and second, it should be proved
that it was done without the consent of the prosecutrix. Once
the prosecutrix states in her evidence that she did not consent B
to act of sexual intercourse done by the accused on her which,
as per her statement, was committed by the accused against
her will and the accused failed to give any satisfactory
explanation in his defence evidence on this issue, the court C
will be entitled to draw the presumption under Section 114-A
of the Indian Evidence Act against the accused holding that he
committed the act of sexual intercourse on the prosecutrix
against her will and without her consent. The question as to
whether the sexual intercourse was done with or without o
consent being a question of fact has to be proved by the
evidence in every case before invoking the rigour of Section
114-Aofthe Indian Evidence Act.
26. Coming now to the case in hand, we find that the E
prosecutrix, in her sworn testimony, in clear terms has said
that she did not give her consent for commission of the act to
the appellant and that he committed the act of sexual violence
on her against her will. The appellant was not able to give any
· satisfactory explanation in his statement recorded under F
Section 313 of the Code nor was he able to adduce any
defence evidence to rebut the presumption contained in
Section 114-Aofthe lndfan Evidence Act, 1872 against him.
So far as commission of sexual intercourse is concerned, it is
proved with the medical evidence that it was performed by the G
appellant with the prosecutrix.
27. We are alive to the law laid down by this Court
wherein it is ruled that in a case of rape, no self- respecting
H
448 SUPREME COURT REPORTS [2015] 3 S.C.R.
A woman would ever come forward in a court just to make a
humiliating statement against her honour such as is involved
in the commission of rape on her. The testimony of the
prosecutrix in such cases is vital and unless there are
compelling reasons, which necessitate looking for
B corroboration of her statement or where there are compelling
reasons for rejecting of her testimony, there is no justification
on the part of the court to reject her testimony.
28. In the instant case, our careful analysis of the
C statement of the prosecutrix has.created an impression on our
minds that she is a reliable and truthful witness and her
testimony suffers no infirmity or blemish whatsoever. That apart,
as observed supra, even the medical evidence supports the
commission of sexual violence on her and we need not
D elaborate on this issue any more in the light of concurrent
finding of the courts below havirig been recorded against the
appellant holding in clear terms that sign of commission of
rape on her by the appellant stood proved by medical evidence
E beyond reasonable doubt. Indeed, even the appellant had not
disputed the factum of commission of sexual intercourse by
him on the prosecutrix because as taken note of, the appellant's
only defence was that since the prosecutrix had consented to
the commission of the sexual act, no offence of rape was made
F out against him. This argument we have already rejected.
29. In the light of this, we have no hesitation in invoking
the statutory presumption contemplated under Section 114-A
of the Evidence Act against the appellant rendering him liable
G to suffer the conviction under Section 376 of IPC .for
commission of offence of rape on the prosecutrix.
30. In the light of foregoing discussion, we uphold the
finding of commission of rape by the appellant on the
H prosecutrix, which in our view, was rightly recorded by the two
DEEPAK v. STATE OF HARYANA 449
[ABHAY MANOHAR SAPRE, J.]
courts below. A
31. The last submission of learned counsel for the
appellant was that looking to the young age of the appellant
and further he being the first offender and lastly, the fact that he
has already undergone 3 years 1 month in jail, this Court should B
take some lenient view in the matter of awarding of the
sentence to him.
32. We find no merit in this submission for the simple
reason that the appellant has been awarded minimum c
mandatory sentence of 7 years. In other words, once the
offence under Section 376 IPC is proved then the minimum
sentence is 7 years, which may extend to imprisonment for life
and the fine. Therefore, the appellant should feel fortunate that
he was awarded only 7 years' sentence else it could have been D
even more.
33. Since the State has not filed any appeal for
enhancement of sentence, we need not go into this question
except to reject the submissions urged by the learned counsel E
for the appellant being totally devoid of substance.
34. Learned counsel for the appellant had placed
reliance on the decision of this Court in Uday vs. State of
Karnataka [(2003) 4 SCC 46] in support of his submissions. F
We have gone through the facts of this case and find that in
the light of what we have held on appreciation of the evidence
of this case, the decision relied upon may not help the
appellant. In our opinion, it is distinguishable on facts.
G
35: In the light of foregoing discussion, we find no.merit
in this appeal, which fails and is accordingly dismissed. Since
the appellant is on bail by the order passed by this Court on
06.01.2012, his bail bonds stand cancelled and he is directed
to surrender forthwith t~ serve out the remaining period of his H
sentence.
Nidhi Jain Appeal dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Article 136"Sign in to search