RAJESH PATELversusSTATE OF JHARKHAND

                    (2013] 2 S.C.R. 411


                       RAJESH PATEL                                A
                               v.
                 STATE OF JHARKHAND
            (Criminal Appeal No. 1149 of 2008)
                      MARCH 15, 2013.
                                                                   B
          [CHANDRAMAULI KR. PRASAD AND
               V. GOPALA GOWDA, JJ.]

    PENAL CODE, 1860:
                                                                   c
     s.376 - Conviction by courts below - Held: In the instant
case, prosecution version as narrated by prosecutrix, is most
i:nprobable and unnatural - The witness who is stated to have
rescued the prosecutrix from the place of occurrence and the
employer of the prosecutrix did not support the prosecution        0
case - The doctor who medically examined the prosecutrix
and the 10 were not examined - Courts below erred in holding
that their non-examination did not prejudice the defence -
Further, the inordinate delay of 11 days is fatal to prosecution
case - The testimony of the prosecutrix is most unnatural and      E
improbable to believe and, therefore, it does not inspire
confidence for acceptance of the same for sustaining the
conviction and sentence - Prosecution case has created
reasonable doubt - Therefore, the benefit of doubt must enure
to the appellant - The impugned judgment is set aside -            F
Constitution of India, 1950 - Art.136.

   . The appellant was prosecuted for committing rape on
her acquaintance and class-mate, who was working as
a nurse. The trial court convicted the appellant u/s 376
IPC and sentenced him to undergo 7 years RI. The High              G
Court affirmed the conviction and the sentence.

     Allowing the appeal, the Court

                              411                                  H
    412     SUPREME COURT REPORTS             [2013] 2 S.C.R.


A      HELD: 1.1 The prosecution story as narrated by the
   prosecutrix is most improbable and unnatural. The
  prosecutrix is the solitary witness to prove the charge.
  Her version is sought to be corroborated by her mother
  PW2 who has supported the prosecution case on the
B basis of narration of the alleged offence by the prosecutrix
  to her. It is an undisputed fact that both the appellant and
  the prosecutrix were class-mates and had good
  acquaintance with each other as they were exchanging
  books. The prosecutrix stated that on 14.2.1993, she
c went to the house of the appellant to take her book and
  when she entered the house he locked the door from
  inside, and committed rape on her and threatened her
  with a knife; that the appellant then locked her in the
  house and went away; that after about half an hour, PW3,
  a common friend of both, unlocked the room. During this
0
  period she did not raise alarm to draw the attention of the
  neighbours. This would clearly go to show that the
  testimony of the prosecutrix is most unnatural and
  improbable to believe and it does not inspire confidence.
E [para 8] [418-H; 419-B-F]

       1.2 Further, there is an inordinate delay of nearly 11
  days in lodging the FIR. The explanation given by the
  prosecutrix is that she went to her house and narrated
  the incident to her mother, and on assurance of PW3 that
F he would take action in the matter, her mother remained
  silent for 2-4 days. The inordinate delay of 11 days in
  lodging the FIR is fatal to the prosecution case. The
  findings and observations made by the courts below in
  accepting the delay in lodging the FIR by assigning
G unsatisfactory reasons cannot be accepted by this Court
  as the findings and reasons are erroneous in law. [para
  9] [420-B-C; 421-B-C]

       1.3 Besides, PW3, who is a common friend of the
    appellant and the prosecutrix and stated to have rescued
H
     RAJESH PATEL v. STATE OF JHARKHAND                 413


her from the place of occurrence, has categorically stated     A
that he does not know anything about the case. He has,
thus, not supported the version of the prosecution. PW4
has stated in his evidence that the prosecutrix was
getting nursing training privately in his chamber. He has
been treated as hostile and was cross-examined by the          B
prosecution. In . his cross-examination he has
categorically stated that he had told the police that he did
not know anything about the incident. He has further
stated that neither the prosecutrix nor her mother told him
about the incident. The evidence of PW3 and PW4 has            c
seriously affected the prosecution case. [para 10 and 12]
[421-D-E, F-G; 422-F]
     1.4 Further, neither the Doctor, who is stated to have
medically examined the prosecutrix, nor the 1.0. has been·
examined before the trial court to prove the prosecution       D
case. The appellant was right in bringing to the notice of
the trial court as well as the High Court that non-
examination of the said two important witnesses has
prejudiced his case. Therefore, the finding and reasons
recorded by both the trial court as well as the High Court     E
that non-examination of the doctor and the 1.0. has not
prejudiced the case of the appellant is totally an
erroneous approach. For this reason also, the findings
and reasons recorded in the impugned judgment that the
trial court was justified in holding that the prosecution      F
has proved the charge against the appellant and that he
has committed the offence on the prosecutrix, is totally
erroneous and the same is wholly unsustainable in law.
[para 11-12] [421-H; 422-A; 423-C-E]
    1.5 The courts below could not have, at any stretch G
of imagination, on the basis of the evidence on record
held that the appellant is guilty of committing the offence
punishable u/s 376, IPC. The prosecution case is neither
natural nor consistent nor probable to believe to sustain
the conviction and sentence of the appellant. Therefore, H
    414      SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A   the benefit of doubt must enure to the appellant. The
    impugned judgment requires to be interfered with by this
    Court in exercise of its jurisdiction, and is accordingly set
    aside. [para 12, 15 and 16] [422-F-G; 425-D-F-G]

B        Raju v. State of Madhya Pradesh (2008) 5 SCC 133 -
    referred to

         Ram Kumar v. State of Haryana (2006) 9 SCC 589 -
    cited.

c                        Case Law Reference:

          (2006) 9 sec 589        cited                 para 5

          (2008) 5 sec 133        referred to           para 14

D       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1149 of 2008.

        From the Judgment & Order dated 14.11.2006 of the High
    Court of Jharkhand in Criminal Appeal No. 58 of 1999.

E       Sanjay Hegde, Shankar N., Arijit Majmudar (For N.
    Annapoorani) for the Appellant.

        Anil Kumar Jha, S.K. Divakar for the Respondent.

        The Judgment of the Court was delivered by
F
       V. GOPALA GOWDA, J. 1. This criminal appeal is
  directed against the judgment of the High Court of Jharkhand
  at Ranchi passed in Criminal Appeal No.58 of 1999 dated
  14.11.2006 wherein it has confirmed the judgment and order
G passed by the 1st Additional Sessions Judge, Jamshedpur in
  S.T.No.168 of 1994/172 of 1995. By the said judgment, the
  appellant herein was convicted under Section 376, 1.P.C. and
  was sentenced to undergo rigorous imprisonment for a period
  of seven years.

H       2. The prosecution case in nutshell is stated hereunder for
     RAJESH PATEL v. STATE OF JHARKHAND                     415
            [V. GOPALA GOWDA, J.]
the purpose of appreciating the rival legal contentions urged        A
i~ this appeal.

     3. The prosecutrix in this case has made a statement
before the police at Ghatsila police station, stating that she has
narrated the incident which took place on 14.2.1993 at 11.00         B
a.m. in the house of the appellant. She stated that she was
working as a nurse in the Nursing Home of Dr. Prabir Bhagat
at Moubhandar in the jurisdiction of Ghatsila, East Singhbhum
District. The house of the appellant Rajesh, who appears to be
a classmate of prosecutrix, is situated near the Nursing Home        C
in which the prosecutrix was working as a nurse. It is the case
of the prosecution that at the request of the appellant she went
to his house in order to get back her book from him. As soon
as she entered the house of the appellant, he closed the door
from inside. At that time the members of the appellant's family
were not present inside the house. When the prosecutrix tried        D
to raise alarm, she was terrorized by the appellant who
threatened her that she would be killed by a knife if she raises
alarm. Thereafter, the appellant committed rape on her. When
she felt pain on her private part, she wanted to cry but she was
silenced by the appellant by displaying a knife to her. After        E
committing the offence of rape the appellant left the house and
locked the door from outside. After half an hour, one Purnendu
Babu of Chundih came and unlocked the house and the
prosecutrix returned to her house silently. It is further the case
of the prosecution that she went to her house and narrated the       F
incident to her mother. However, the mother of the prosecutrix
remained silent for two to four days on the assurance of Mr.
Purnendu Babu that he would take action in the matter.
Additionally, it was alleged that the appellant at the time of
committing the offence had also threatened the prosecutrix that      G
she would be killed if she lodges a complaint against him.
     4. The trial court convicted the accused and sentenced him
to undergo imprisonment of seven years. The correctness of
the same was challenged before the High Court of Jharkhand           H
     416      SUPREME COURT REPORTS                    [2013] 2 S.C.R.


 A    by filing Criminal Appeal No.58 of 1999 urging various legal
      contentions. After considering the legal contentions on behalf
      of the appellant, the High Court has affirmed the conviction and
      sentence of the accused and dismissed the appeal. The
      correctness of the same is challenged in this appeal urging the
   B following legal contentions: that the courts below have failed to
      appreciate that the sole testimony of the prosecutrix could not
      have been used against the appellant to hold him guilty of
      offence under Section 376, IPC; that the prosecution has not
      examined either the doctor who conducted the medical
 c    examination of the prosecutrix or the investigating officer.
      Therefore, the finding of fact holding that the appellant is guilty
      of the offence is erroneous in law and liable to be set aside.
     Another ground urged by Mr.Sanjay Hegde, the learned counsel
     for the appellant, is that the courts below failed to appreciate
·. D that the story of confinement of the prosecutrix in the house of
     the appellant cannot be sustained. This is because PW3
     Purnendu Babu, a common friend of the appellant and the
     prosecutrix, who is alleged to have rescued the prosecutrix from
     the alleged confinement, did not support the same, thereby
   E breaking the chain of events of the prosecution story. Further,
     it is urged by him that the courts below failed to note the delay
     in lodging the FIR which has not been adequately explained.
     The Courts below have explained the delay in filing FIR on the
     basis of the intervention of PW3 and PW4, namely, Purnendu
     Babu and the Doctor of the Nursing Home in which the
   F prosecutrix was working, as they assured the victim to settle
     the matter between the parties. However, both of these
     witnesses were declared either tendered by the prosecution or
     hostile during the course of the trial. Further, the appellant
     contends that the learned courts below failed to take into
  G consideration of the serious contradiction in the version of the
     prosecutrix and her mother. The prosecutrix in her cross
     examination has stated that Dr. Prabir Bhagat - PW4 was in
     his chamber in the evening when the appellant along with
     Purnendu Babu- PW3 went to the Nursing Home whereas the
  H mother of the prosecutrix in her testimony has stated that the
       RAJESH PATEL v. STATE OF JHARKHAND                     417
              [V. GOPALA GOWDA, J.]
incident could not be reported to Dr.Prabir Bhagat on the date        A
of the occurrence since the Doctor was in TATA. According to
the appellant, the courts below have ignored the contradiction
in the version of the prosecutrix. On one hand she says that she
never met the appellant till 21.2.93, on the other hand she has
stated that on the evening of the alleged occurrence, she met         B
the appellant at the dispensary of Dr.Prabir Bhagat. It was
further contended by the appellant regarding the prosecution
explanation that she could not raise alarm when the house was
locked and offence was being committed on her as she was
threatened by the appellant with a knife is improbable to believe     c
her statement. This is because she could have raised an alarm
when the appellant allegedly locked the prosecutrix inside the
house for half an hour after the appellant committing offence of
rape on her. For all the abovementioned grounds, the
appellant's counsel contends that the conviction and sentence         D
imposed upon the appellant cannot be allowed to sustain.

     5. Alternatively, the learned counsel contends that if, the
physical relationship between the appellant and the prosecution
is established, it was a case of consensual sex. Both of them
were majors to enter into such alliance and they were                 E
classmates and familiar with each other as well as on visiting
terms prior to the alleged occurrence of offence. Therefore, the
appellant has not committed offence as alleged. On the issue
of sentencing, the learned counsel has relied upon the decision
of this Court in the case of Ram Kumar v. State of Haryana 1,         F
as the appellant in the present case had already undergone the
imprisonment of more than 1 year and 8 months and more than
20 years have elapsed from the date of commission of the
offence and therefore the appeal may be allowed by passing
appropriate order. The prosecutrix and the appellant are both         G
married and settled in life and further the appellant is of a young
age. Therefore, this Court may exercise its power by recording
special and adequate reasons as provided under proviso to
Section 376, IPC and the sentence imposed may be reduced
1.   (2ooei 9 sec 589.                                                H
    418      SUPREME COURT REPORTS                   [2013] 2 S.C.R.


A to the period already undergone in judicial custody by the
   appellant and treat the same as imprisonment and relief may
  be granted to him to this extent as was observed in Ram
  Kumar case (Supra}, if the case urged on behalf of the appellant
  is not acceptable.
B
        6. On the other hand, the prosecution sought to justify the
  concurrent findings of fact recorded by the High Court and the
  Trial Court on the charge against the accused. The learned
  counsel for prosecution would contend that the Courts below,
C while accepting the testimony of the prosecutrix and her mother,
  have rightly convicted and sentenced the accused to undergo
  imprisonment for seven years and the same need not be
  interfered with by this Court in this appeal in exercise of its
  jurisdiction. Further, it is contended by the learned counsel that
  the judgment referred to supra, by the appellant's counsel is
D inapplicable to the facts situation of the present case and
  therefore, discretionary power of this court for reduction of the
  sentence need not be exercised and prayed for dismissal of
  this appeal.

E       7. With reference to the aforesaid rival legal contentions
  urged on behalf of the parties, we have carefully examined the
  case to find out as to whether the impugned judgment warrants
  interference of this Court on the ground that the concurrent
  finding of fact by the High Court on the charge leveled against
F the appellant under Section 376, IPC, and the finding recorded
  on this charge against the appellant on the basis of the
  evidence on record is erroneous in law and if so, whether it
  requires interference of this Court in exercise of its jurisdiction.
  The said points are answered in favour of the appellant by
G assigning the following reasons:
      8. The prosecution case is that the appellant has
  committed the offence of rape on the prosecutrix on 14.2.1993.
  She is the solitary witness to prove the charge. The same is
  sought to be corroborated by her mother PW2 who has
H supported the prosecution case on the basis of narration of the
     RAJESH PATEL v. STATE OF JHARKHAND                     419
            [V. GOPALA GOWDA, J.]
alleged offence by the prosecutrix to her. It is an undisputed fact A
that both the appellant and the prosecutrix are class-mates and
had good acquaintance with each other as they were
exchanging books. The case of the prosecution is that she had
given her book to the appellant. She asked him to return the
same and he asked her to go to his house on 14.2.93 to take B
back the book. Accordingly, she went to the house of the
appellant. When she entered the house he locked the door of
the house from inside. At that time she has not raised an alarm,
except stating that she insisted not to lock the door of the house
as there were no other inmates in the house at that point of time. c
The version of the prosecutrix is that she could not raise alarm
as the appellant has threatened her with knife. Further case of
the prosecution is that he had then committed offence of rape
on her. Further she has stated that while the appellant was
committing rape on her she got pain in her private part at that 0
point of time also she wanted to raise alarm, but he has shown
the knife to her not to raise alarm. Thus, the prosecution story
as narrated by the prosecutrix is most improbable and unnatural.
 This contention of the appellant is further supported by the
 contention urged on his behalf that after the offence was E
 committed, the appellant locked her in the house and went
 away from the house. After about half an hour Mr.Purnendu
 Babu -PW3, who is a common friend of both the appellant and
the prosecutrix came there and unlocked the room till then she
did not raise alarm drawing the attention of the neighbours. The
aforesaid circumstance would clearly go to show to come to F
the conclusion that the case of the prosecution is not natural
 and probable. Neither the prosecutrix nor the PW3 has informed
the police with regard to the alleged offence said to have
committed by the appellant after the prosecutrix was unlocked
 from the house. The reason given by the prosecution is that G
 PW3 was making sincere efforts to bring about the settlement
 of marriage between the appellant and the prosecutrix. The
 same did not materialize and, therefore, the complaint was
 lodged with the jurisdictional police on 25.2.93. The above said
 version of PW1 regarding settlement between her and the H
    420      SUPREME COURT REPORTS                  [2013) 2 S.C.R.

A appellant is not proved as PW3 has stated in his evidence that
  he does not know anything regarding the alleged offence.

          9. Further, there is an inordinate delay of nearly 11 days
    in lodging the FIR with the jurisdictional police. The explanation
    given by the prosecutrix in not lodging the complaint within the
8
     reasonable period after the alleged offence committed by the
    appellant is that she went to her house and narrated the offence
    committed by the appellant to her mother and on assurance of
     Purnendu Babu - PW3, the mother remained silent for two to
    four days on the assurance that he will take action in the matter.
C   Further, the explanation given by the prosecutrix regarding the
    delay is that at the time of commission of offence the appellant
    had threatened her that in case she lodges any complaint
    against him, she would be killed. The said explanation is once
    again not a tenable explanation. Further, the reason assigned
D   by the High Court regarding not lodging the complaint
    immediately or within a reasonable period, it has observed that
    in case of rape, the victim girl hardly dares to go to the police
    station and make the matter open to all out of fear of stigma
    which will be attached with the girls who are ravished. Also, the
E   reason assigned by the trial court which justifies the explanation
    offered by the prosecution regarding the delay in lodging the
    complaint against the appellant has been erroneously accepted
    by the High Court in the impugned judgment. In addition to that,
    further observation made by the High Court regarding the delay
F   is that the prosecutrix as well as her mother tried to get justice
    by interference of PW3, who is a common friend of both of them
    and PW4, the Doctor with whom the prosecutrix was working
    as a Nurse. When the same did not materialize, after lapse of
    11 days, FIR was lodged with the jurisdictional police for the
G   offence said to have been committed by the appellant. Further,
    the High Court has also proceeded to record the reason that
    prosecutrix had every opportunity to give different date of
    occurrence instead of 14.2.93 but she did not do it which reason
    is not tenable in law. Further, the High Court accepted the
H   observation made by the learned trial Judge wherein the
      RAJESH PATEL v. STATE OF JHARKHAND                       421
             [V. GOPALA GOWDA, J.]
explanation given by the prosecutrix in her evidence about             A
being terrorized to be killed by the appellant in case of reporting
the matter to the police, is wholly untenable in law. The same
is not only unnatural but also improbable. Therefore, the
inordinate delay of 11 days in lodging the FIR against the
appellant is fatal to the prosecution case. This vital aspect          B
regarding inordinate delay in lodging the FIR not only makes
the prosecution case improbable to accept but the reasons and
observations made by the trial court as well as the High Court
in the impugned judgments are wholly untenable in law and the
same cannot be accepted. Therefore, the findings and                   c
observations made by the courts below in accepting delay in
lodging the FIR by assigning unsatisfactory reasons cannot be
accepted by this Court as the findings and reasons are
erroneous in law.

      10. Further in the case in hand, PW3, who is a common            D
 friend of the appellant and the prosecutrix, according to the
prosecution case, he has categorically stated that he does not
know anything about the case for which he had received the
notice from the court to depose in the case. PW4 has stated
in his evidence that the prosecutrix was getting nursing training      E
privately in his chamber for the last three years as on the date
of his examination, namely, on 16.11.95. He has stated in his
examination-in-chief that on 14.2.93 when he opened his
chamber the prosecutrix came to his chamber and further stated
that her mother did not tell him anything. He has been treated         F
as hostile by the prosecution, he was cross-examined by the
prosecutor, in his cross-examination he has categorically stated
that he has told the police that he does not know anything about
the incident. He has further stated that neither the prosecutrix
nor her mother told him about the incident and further stated          G
that he does not know anything about the case.

    11. Further, neither the Doctor nor the 1.0. has been
examined before the trial court to prove the prosecution case.
The appellant was right in bringing to the notice of the trial court   H
    422      SUPREME COURT REPORTS                 [2013) 2 S.C.R.


A as well as the High Court that the non-examination of the
  aforesaid two important witnesses in the case has prejudiced
  the case of the appellant for the reason that if the doctor would
  have been examined he could have elicited evidence about any
  injury sustained by the prosecutrix on her private part or any
B other part of her body and also the nature of hymen layer etc.
  so as to corroborate the story of the prosecution that the
  prosecutrix suffered unbearable pain while the appellant
  committed rape on her. Non-examination of the doctor who has
  examined her after 12 days of the occurrence has not
c prejudiced the case of the defence for the reason that the
  prosecutrix was examined after 12 days of the offence alleged
  to have committed by the appellant because by that time the
  sign of rape must have disappeared. Even if it was presumed
  that the hymen of the victim was found ruptured and no injury
  was found on her private part or any other part of her body,
0
  finding of such rupture of hymen may be for several reasons in
  the present age when the prosecutrix was a working girl and
  that she was not leading an idle life inside the four walls of her
  home. The said reasoning assigned by the High Court is totally
  erroneous in law.
E
       12. In view of the above statement of evidence of PW3 and
  PW4 whose evidence is important for the prosecution to prove
  the chain of events as per its case, the statement of evidence
  of the aforesaid witnesses has seriously affected the
F prosecution case. Therefore, the courts below could not have,
  at any stretch of imagination, on the basis of the evidence on
  record held that the appellant is guilty of committing the offence
  under Section 376, IPC. Further, according to the prosecutrix,
  PW3 who is alleged to have rescued her from the place of
G occurrence of offence, has clearly stated in his evidence that
  he does not know anything about the incident in his statement
  thereby he does not support the version of prosecut[on. The
  High Court has erroneously accepted the finding of the trial
  court that the appellant has not been prejudiced for non-
H examination of the doctor for the reason that she was working
     RAJESH PATEL v. STATE OF JHARKHAND                      423
            [V. GOPALA GOWDA, J.]
as a Nurse in the private hospital of PW4 and being a nurse          A
she knew that the information on commission of rape is grave
in nature and she would not have hesitated in giving the
information to the police if the occurrence was true. Further, the
finding of the courts below that non-examination of the I. 0. by
the prosecution who has conducted the investigation in this case     B
has not caused prejudice to the case of the appellant, since
the prosecution witnesses were unfavorable to the prosecution
who were either examined or declared hostile by the
prosecution, which reasoning is wholly untenable in law.
Therefore, the finding and reasons recorded by both the trial        c
court as well as the High Court regarding non-examination of
the above said two witnesses in the case has not prejudiced
the case of the appellant is totally an erroneous approach of
the courts below. For this reason also, we have to hold that the
findings and reasons recorded in the impugned judgment that
                                                                     0
the trial court was justified in holding that the prosecution has
proved the charge against the appellant and that he has
committed the offence on the prosecutrix, is totally erroneous
and the same is wholly unsustainable in law.
     13. The finding with regard to the sentence of the appellant    E
recorded by the trial court which is accepted by the High Court
on the basis of the solitary testimony of prosecutrix which is
supported by the evidence of her mother PW2 is once again
an erroneous approach on the part of the High Court. The
offence of rape alleged to have committed by the appellant is        F
established without any evidence as the prosecution failed to
prove the chain of events as stated by the prosecutrix. Since
the evidence of PW3 & PW4 did not support the prosecution
case, but on the other hand, their evidence has seriously
affected the story of prosecution. Therefore, the courts below       G
could not have found the appellant as guilty of the charge and
convicted and sentenced him for the offence of rape.
    14. Further, one more strong circumstance which has
weighed in our mind is that they had good acquaintance with
each other as they were class-mates and they were in terms           H
    424       SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A of meeting with each other. The defence counsel had
  alternatively argued that the appellant had sex with her consent.
  The High Court proceeded not to accept the said argument by
  giving reasons that the appellant failed to explain as to under
  what circumstance he had sex with the consent of the
B prosecutrix when she was confined in his house. The contention
  urged on behalf the appellant that it was consensual sex with
  the prosecutrix is to be believed for the reason that she herself
  has gone to the house of the appellant though her version is
  that she went there at the request of the appellant to take back
C her book which she had given to him. This is a strong
  circumstance to arrive at the conclusion that the defence case
  of the appellant is a consensual sex. Further; the prosecution
  case is that after the offence was committed by the appellant
  he had locked the room from outside and left. After half an hour
  Pumendu Babu- PW3 arrived and unlocked the room. This story
0
  is improbable to believe and the prosecutrix has not lodged the
  complaint either immediately or within reasonable period from
  the date of occurrence. The complaint was undisputably lodged
  after lapse of 11 days by the prosecutrix. In this regard, it is
  pertinent to mention the judgment of this Court in Raju v. State
E of Madhya Pradesh 2, the relevant paragraph of which is
  extracted hereunder for better appreciation in support of our
  conclusion:
          "12. Reference has been made in Gurmit Singh case to
          the amendments in 1983 to Sections 375 and 376 of the
F
          Penal Code making the penal provisions relating to rape
          more stringent, and also to Section 114-A of the Evidence
          Act with respect to a presumption to be raised with regard
          to allegations of consensual sex in a case of alleged rape.
          It is however significant that Sections 113-A and 113-8 too
G
          were inserted in the Evidence Act by the same amendment
          by which certain presumptions in cases of abetment of
          suicide and dowry death have been raised against the
          accused. These two sections, thus, raise a clear

H 2. (2oos) s sec 133.
           RAJESH PATEL v. STATE OF JHARKHAND                    425
                  [V. GOPALA GOWDA, J.]
        presumption in favour of the prosecution but no similar A
        presumption with respect to rape is visualised as the
        presumption under Section 114-A is extremely restricted
        in its applicability. This clearly shows that insofar as
        allegations of rape are concerned, the evidence of a
        prosecutrix must be examined as that of an injured witness B
        whose presence at the spot is probable but it can never
        be presumed that her statement should, without exception,
        be taken as the gospel truth. Additionally, her statement
        can, at best, be adjudged on the principle that ordinarily
        no injured witness would tell a lie or implicate a person c
        falsely. We believe that it is under these principles that this
         case, and others such as this one, need to be examined."
         15. For the aforesaid reasons the prosecution case is not
    natural, consistent and probable to believe to sustain the
    conviction and sentence of the appellant for the alleged offence     D
    said to have committed by him.
/
          16. The trial court as well as the High Court should have
    appreciated the evidence on record with regard to delay and
    not giving proper explanation regarding delay of 11 days in filing
    FIR by the prosecutrix and non-examination of complainant            E
    witnesses, viz. the Doctor and the 1.0. which has not only caused
    prejudice to the case of the appellant but also the case of
    prosecution has created reasonable doubt in the mind of this
    Court. Therefore, the benefit of doubt must enure to the
    appellant. As we have stated above the testimony of the              F
    prosecutrix is most unnatural and improbable to believe and
    therefore it does not inspire confidence for acceptance of the
    same for sustaining the conviction and sentence. Therefore, we
    are of the view that the impugned judgment requires to be
    ·interfered w"1th by this Court in exercise of "its jurisdiction.    G
    Accordingly, we allow the appeal and set aside the impugned
    judgment.
          17. If the appellant has executed the bail bonds, the same
    may be discharged.
    R.P.                                            Appeal allowed.      H
                       (2013] 2 S.C.R. 426


A                  NAGENDRAPPA NATIKAR
                                 v.
                          NEELAMMA
        (Special Leave Petition (Civil) No. 11800 of 2013)
                        MARCH 15, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

        HINDU ADOPTIONS AND MAINTENANCE ACT, 1956:

c        s.18 - Suit claiming maintenance by wife - Held: Is
    maintainable inspite the compromise reached between the
    parties, under 0. 23, r. 3 CPC and an order u/s 125 CrPC
    based thereon granting permanent alimony - Code of
    Criminal Procedure, 1973 - s.125 - Code of Civil Procedure,
0   1908 - 0. 23, r.23 - Contract Act, 1872 - s.25.

       In the instant petition filed by the husband, the
  question for consideration before the Court was: whether
  a compromise entered into by husband and wife under
  0. 23, r. 3 CPC, agreeing for a consolidated amount
E towards permanent alimony, thereby giving up any future
  claim for maintenance, accepted by the court in a
  proceeding uls 125 CrPC, would preclude the wife from
  claiming maintenance in a suit filed uls 18 of the Hindu
  Adoption and Maintenance Act, 1956.
F
        Dismissing the petition, the Court

       HELD: 1.1 Any order passed u/s 125 Cr.P.C. by
  compromise or otherwise cannot foreclose the remedy
  available to a wife uls 18(2) of the Hindu Adoptions and
G Maintenance Act, 1956. Section 125 Cr.P.C. is a piece of
  social legislation which provides for a summary and
  speedy relief by way of maintenance to a wife who is
  unable to maintain herself and her children. Section 125
  is not intended to provide for a full and final
H                            426
      NAGENDRAPPA NATIKAR v. NEELAMMA                        427


determination of the status and personal rights of parties,          A
which is in the nature of a civil proceeding; and the order
made u/s 125 Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court. [para 10-11)
[431-B-D-E]
                                                                     8
    1.2 Section 25 of the Contract Act provides that any
agreement which is opposed to public policy is not
enforceable in a court of law and such an agreement is
void, since the object is unlawful. [para 11) [431-D-E]

     1.3 The Family Court and the High Court have rightly            c
held that the suit u/s 18 of the Hindu Adoption and
Maintenance Act, 1956 is perfectly maintainable, in spite
of the compromise reached between the parties under 0.
23. r. 3 C.P.C. [para 9) [431-A-B]

    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.                   D
11800 of 2013.

    From the Judgment & Order dated 28.03.2011 of the High
Court of Karnataka, Circuit Bench at Gulbarga in MFA No.
31979 of 2010.                                                       E
     Raja Venkatappa Naik, Raja Raghavendra Naik, S.K.
Tandon, R.K. Gupta, Rameshwar Prasad Goyal for the
Petitioner.

     The Judgment of the Court was delivered by                      F
     K.S. RADHAKRISHNAN, J. 1. Delay condoned.

     2. The question that is raised for consideration in this case
is whether a compromise entered into by husband and wife
under Order XX.Ill Rule 3 of the Code of Civil Procedure (CPC),      G
agreeing for a consolidated amount towards permanent
alimony, thereby giving up any future claim for maintenance,
accepted by the Court in a proceeding under Section 125 of
the Code of Criminal Procedure (CrPC), would preclude the
wife from claiming maintenance in a suit filed under Section 18      H
    428       SUPREME COURT REPORTS                (2013] 2 S.C.R.

A of the Hindu Adoption and Maintenance Act, 1956 (for short
  "the Act').

       3. The marriage between the petitioner (husband) and
  respondent (wife) took place on 24.5.1987. Alleging that the
B petitioner is not maintaining his wife, respondent filed an
  application under Section 125 CrPC for grant of maintenance
  before the 1st Additional JMFC at Gulbarga, being Misc. Case
  No. 234of1992. While the matter was pending, an application
  was preferred by the parties under Order XXlll Rule 3 CPC on
C 3.9.1994 stating that the parties had arrived at a compromise,
  by which the respondent had agreed to receive an amount of
  Rs.8,000/- towards permanent alimony and that she would not
  make any claim for maintenance in future or enhancement of
  maintenance. Consent letter dated 30.3.1990, which is in
  Kannada, the English translation of the same reads as follow:
D
          "Consent letter:
                 I, Neelamma W/o Nagendra Natikar, Age 23 years, ·
          R/o Old Shahabad, do hereby execute this consent letter
          in favour of my husband Nagendra Natikar with free will
          and consent without coercion and misrepresentation. After
          my marriage with Nagendra Natikar, I could not lead
          marital life happy with my husband due to my ill health as
          prior to my marriage I was suffering from backache,
          Paralysis stroke to my left hand and left leg and was also
F         suffering from epilepsy (Fits disease) and therefore I have
          myself decided to withdraw from marital life. I have given
          my consent for mutual divorce. I have no objection if my
          husband would contract second marriage with someone.
          Prior to my marriage I was suffering from chronic disease.
G         I had asked my father not to celebrate her marriage with
          anyone. My father forcibly got marriage with Nagendrappa
          Natikar. Henceforth I will not make any further claims and
          also forfeit my rights in future and I will not claim
          compensation or maintenance or alimony. I am satisfied
H
       NAGENDRAPPA NATIKAR v. NEELAMMA                       429
            [K.S. RADHAKRISHNAN, J.]
    with the payment of Rs.8000/- and I will not make any further    A
    claims against my husband.

          I have executed this consent letter in favoaur of my
    husband without any force of anybody and free from
    misrepresentation or coercion. My father.-mother or nay          8
    other family members have no objection for executing this
    consent letter.
                                         Signature of Executant
                                                    Neelamma
                                          (Signed in Kannada))       c
     Signature of witnesses:

     1. Tippanna (signed in Kannada)

     2. Devindrappa (signed in Kannada)
                                                                     D
     3. Syed Zabiullah Sahab (signed scribe)"
The Court, on the same day, passed the following order:
    "Parties both present. Both parties and advocates files          E
    compromise petition. The contents of the compromise
    petition is read over and explained to them. They admit
    the execution of the same before court. Respondent paid
    Rs.8000/- (eight thousand) before court towards full
    satisfaction of the maintenance as per compromise
    recorded. In view of the compromise, petition dismissed."        F

     4. Respondent wife then filed a Misc. Application no. 34
of 2003 under Section 127 Cr.P.C. before the Family Court,
Gulbarga for cancellation of the earlier order and also for
awarding future maintenance, which was resisted by the               G
petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on
3.9.1994 and hence the application for cancellation of the earlier
order is not maintainable. The Court accepted the plea of the
husband and took the view that since such an order was still in      H
    430     SUPREME COURT REPORTS                [2013] 2 S.C.R.


A force and not set aside by a competent Court, it would not be
  possible to entertain an application under Section 127 Cr.P.C.
  The application was, therefore, dismissed on 31.7.2006.

       5. We notice, while the application under Section 127
  Cr.P.C. was pending, respondent wife filed O.S. No. 10 of
8
  2005 before the Family Court, Gulbarga under Section 18 of
  the Act claiming maintenance at the rate of Rs.2,000/- per
  month. The claim was resisted by the petitioner husband
  contending that, in view of the compromise reached between
C the parties in Misc. Case No. 234 of 1992 filed under Section
  125 CrPC, respondent could not claim any monthly
  maintenance and hence the suit filed under Section 18 of the
  Act was not maintainable. The question of maintainability was
  raised as a preliminary issue. The Family Court held by its
  order dated 15.9.2009 that the compromise entered into
D between the parties in a proceeding under Section 125 Cr.P.C.
  would not be bar in entertaining a suit under Section 18 of the
  Act.

        6. The suit was then finally heard on 30.9.2010 and the
E Family Court decreed the suit holding that the respondent is
  entitled to monthly maintenance of Rs.2,000/- per month from
  the defendant husband from the date of the filing of the suit.

       7. Aggrieved by the said order, petitioner took up the
F matter before the High Court by filing an appeal, being M.F.A.
  No. 31979 of 2010, which was dismissed by the High Court
  by its judgment dated 28.3.2011, against which this SLP has
  been preferred.

       8. Shri Raja Venkatappa Naik, learned counsel appearing
G for the petitioner, husband, submitted that suit filed under
  Section 18 of the Act is not maintainable, in view of the order
  dated 3.9.1994, accepting the consent terms and ordering a
  .consolidated amount towards maintenance under Section 125
  Cr.P.C.
H
       NAGENDRAPPA NATIKAR v. NEELAMMA                      431
            [K.S. RADHAKRISHNAN, J.]
     9. We are in complete agreement with the reasoning of          A
the Family Court and confirmed by the High Court that the suit
under Section 18 of the Act is perfectly maintainable, in spite
of the compromise reached between the parties under Order
XXlll Rule 3 C.P.C. and accepted by the Court in its order dated
3.9.1994.                                                           B
     10. Section 125 Cr.P.C. is a piece of social legislation
which provides for a summary and speedy relief by way of
maintenance to a wife who is unable to maintain herself and
her children. Section 125 is not intended to provide for a full     C
and final determination of the status and personal rights of
parties, which is in the nature of a civil proceeding, though are
governed by the provisions of the Cr.P.C. and the order made
under Section 125 Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court.
                                                                    D
     11. Section 25 of the Contract Act provides that any
agreement which is opposed to public policy is not enforceable
in a Court of Law and such an agreement is void, since the
object is unlawful. Proceeding under Section 125 Cr.P.C. is
summary in nature and intended to provide a speedy remedy           E
to the wife and any order passed under Section 125 Cr.P.C.
by compromise or otherwise cannot foreclose the remedy
available to a wife under Section 18(2) of the Act.

     12. The above being the legal position, we find no error in
the view taken by the Family Court, which has been affirmed         F
by the High Court. The Petition is, therefore, dismissed in
limine.

R.P.                                           SLP dismissed.
                         [2013] 2 S.C.R. 432


A           SHANTILAL GULABCHAND MUTHA
                             v.
    TATA ENGINEERING & LOCOMOTIVE CO. LTD. & ANR.
              (Civil Appeal No. 6162 of 2005)
B                         MARCH 18, 2013.
          [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                    IBRAHIM KALIFULLA, JJ.]

          CODE OF CIVIL PROCEDURE, 1908:.
c
         0. 8, r.10 - Judgment on failure of defendant to file written
    statement- Held: Relief under 0. 8, r. 10 is discretionary, and
  court has to be more cautious while exercising such power
  where defendant fails to file written statement -Court must be '
D satisfied that there is no fact which need to be proved in spite
  of deemed admission by defendant, and court must give
  reasons for passing such judgment - In the instant case, trial
  court has not examined as to whether the suit was filed within
  limitation and whether on the basis of pleadings, the relief
E granted by it could have been granted - Court did not even
  consider it proper to examine the case prima facie before
  passing the decree - As trial court failed to meet the
  parameters laid down by Supreme Court to proceed under 0.
  8 r. 10, judgment and decree passed by it is set aside and
F the case is remanded to it to decide afresh - Appellant is at
  liberty to file written statement within the period provided.
      Ba/raj Taneja & Anr. v. Sunil Madan & Anr. 1999 (2)
  Suppl. SCR 258 = AIR 1999 SC 3381; Bogidhola Tea &
  Trading Co. Ltd. & Anr. v. Hira Lal Somani, 2007 (12) SCR
G 1153 = AIR 2008 SC 911; Ramesh Chand Ardawatlya v. Anil
  Panjwani 2003 (3) SCR 1149 = AIR 2003 SC 2508 • relied
    on.


H                                  432
      SHANTILAL GULABCHAND MUTHA v. TATA                   433
       ENGINEERING & LOCOMOTIVE CO. LTD.
                      Case Law Reference:                         A

      1999 (2) Suppl. SCR 258      relied on          para 3
      2007 (12) SCR 1153           relied on          para 5
      2003 (3) SCR 1149            relied on          para 5      B
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 6162 of 2005.
      From the Judgment & Order dated 22.06.2005 of the High
 Court of Judicature at Bombay in Appeal No. 478 of 2005 in
 Notice of Motion No. 503 of 2004 in Suit No. 1924 of 1998.       C
       Prasenjeet Keswani, Pawan Kr. Bansal {for V.D. Khanna)
 for the Appellant.
       Debmalya Banerjee (for Manik Karanjawala) for the
.. Respondents.                                                   D
     The following order of the Court was delivered
                             ORDER
     1. This appeal has been preferred against the judgment       E
 and order dated 22.6.2005 of the High Court of Judicature at
 Bombay, passed in Appeal No.478 of 2005 in Notice of Motion
 No.503 of 2004 in Suit No.1924 of 1988.
     2. Facts and circumstances giving rise to this appeal are:
       A. That the appellant had purchased five Tata Diesel       F
 Vehicles from the respondent No.1 for a sum of Rs.9,58,913/-
 which was to be paid in 8 installments through respondent No.2
 as per repayment schedule. The appellant alleges that eight
 Bills of Exchange were drawn by the respondent no.1 upon the
 respondent no.2 - banker of the appellant and by way of which    G
 the entire amount was paid. Respondent no.1 filed Suit
 No.1924 of 1988 on 2.6.1988 against the appellant as well as
 the banker for recovery of sum of Rs.5,66,000/- alongwith
 interest. Summons were served upon the appellant and he
 entered appearance through advocate to contest the suit.         H
    434      SUPREME COURT REPORTS                  [2013] 2 S.C.R.


A However, subsequently under the impression that the entire
  amount had already been paid, he did not file the written
  statement. The High Court decreed the suit vide judgment and
  decree dated 12.11.2003 under the provisions of Order VIII Rule
  10 of the Code of Civil Procedure 1908, (hereinafter referred
B to as 'CPC') without considering any issue involved therein or
  taking note of the pleadings in the plaint itself.
       B. Aggrieved, the appellant took out a Notice of Motion
  bearing no.503 of 2004 in the said suit for setting aside ex
  parte decree dated 12.11.2003, however, it stood rejected vide
C order dated 10.12.2004 holding it to be not maintainable in view
  of division bench judgment of the Bombay High Court wherein
  it had been held that any decree passed under Order VIII Rule
  10 CPC could not be subjected to the application under Order
  IX Rule 13 CPC.
D        C. Aggrieved, the appellant filed the appeal which has
    been dismissed vide order dated 22.6.2005 concurring with the
    learned Single Judge.
          Hence, this appeal.
E        3. We have heard Shri Prasenjit Keswani, learned counsel
    for the appellant and Shri Debmalaya Banerjee, learned
    counsel for respondent no.1- and perused the record.
       4. This Court in Ba/raj Taneja & Anr. v. Sunil Madan &
  Anr., AIR 1999 SC 3381 dealt with the issue and held that even
F in such fact-situation, the court should not act blindly on the
  averments made in the plaint merely because the written
  statement has not been filed by the defendant traversing the
  facts set out by the plaintiff therein. Where a written statement
  has not been filed by the defendant, the court should be little
G cautious in proceeding under Order VIII, Rule 10, CPC.
  Before passing the judgment against the defendant it must
  ensure that even if the facts set out in the plaint are treated to
  have been admitted, a judgment could possibly by passed in
  favour of the plaintiff without requiring him to prove any fact
H mentioned in the plaint. It is a matter of Court's satisfaction and,
     SHANTILAL GULABCHAND MUTHA v. TATA                       435
      ENGINEERING & LOCOMOTIVE CO. LTD.
therefore, only on being satisfied that there is no fact which need   A
be proved on account of deemed admission, the court can
conveniently pass a judgment against the defendant who failed
to file the written statement. However, if the plaint itself
indicates that there are disputed questions of fact involved in
the case regarding which two different versions are set out in        B
the plaint itself, it would not be safe for the Court to pass a
judgment without requiring the plaintiff to prove the facts so as
to settle the factual controversy. The power of the court to
proceed under Order VIII, Rule 10 CPC is discretionary. The
court further held that judgment as defined in Section 2(9) CPC       C
means the statement given by the Judge of the grounds for a
decree or order. Therefore, the judgment should be self-
contained document from which it should appear as to what
were the facts of the case and what was the controversy which
was tried to be settled by the court and in what manner. The
process of reasoning by which the court came to the ultimate          D
conclusion and decreed the suit should be reflected clearly in
the judgment. The court further held as under:-
     "Whether it is a case which is contested by the defendants
     by filing a written statement, or a case which proceeds ex       E
     parte and is ultimately decided as an ex parte case, or is
     a case in which the written statement is not filed and
     the case is decided under Order 8 Rule 10, the court
     has to write a judgment which must be in conformity with
     the provisions of the Code or at least set out the reasoning
                                                                      F
     by which the controversy is resolved." (Emphasis added)
     5. In Bogidhola Tea & Trading Co. Ltd. & Anr. v. Hira Lal
Somani, AIR 2008 SC 911, this Court while reiterating a similar
view observed that a decree under Order VIII, Rule 10 CPC
should not be passed unless the averments made in plaint are          G
established. In the facts and circumstances of a case, the court
must decide the issue of limitation also, if so, involved.
    (See also: Ramesh Chand Ardawatlya v. Anil Panjwani,
AIR 2003 SC 2508)
                                                                      H
     436      SUPREME COURT REPORTS                 [2013] 2 S.C.R.

A         6. In view of the above, it appears to be a settled legal
     proposition that the relief under Order VIII Rule 10 CPC is
     discretionary, and court has to be more cautious while
     exercising such power where defendant fails to file the written
     statement. Even in such circumstances, the court must be
s    satisfied that there is no fact which need to be proved in spite
     of deemed admission by the defendant, and the court must
     give reasons for passing such judgment, however, short it be,
     but by reading the judgment, a party must understood what were
     the facts and circumstances on the basis of which the court must
c    proceed, and under what reasoning the suit has been decreed.
        7. The instant case is required to be examined in the light
   of the aforesaid settled legal propositions. It is evident from
   the plaint that eight Bills of Exchange, all dated 4.6.1982 for
   the respective amounts had been inclusive of interest and each
 q one of the said bills were accepted by the appellant payable
, at the Mercantile Bank Ltd. Bombay and the said bills were
   discounted by the respondent/plaintiff with its bankers. It is
   further admitted in the plaint that the bank of the appellant paid
   the said amount to the respondent/plaintiff on the respective
 E dates, as the five amounts have been mentioned in para 5 of
   the plaint. However, as the same did not satisfy the entire
   demand, the suit was filed with the following prayer:-
           "That the Defendant No.1 and Defendant No.2 may be
           ordered and decreed to pay to the plaintiff the sum of
F          Rs.999388.30p. as mentioned in paragraph 7 above
           together with interest on the sum of Rs.5,66,000/- at the 1
           rate of 18.5% per annum from the date of suit till
           payments."
G        8. The Trial Court while deciding Suit No.1924 of 1988
     decreed the suit vide judgment and decree dated 12.11.2003,
     which reads as under:-
           "Advocate for the plaintiffs is present. Nobody is present
           for the defendants. The matter is on board for proceeding
.H         against the defendants for want of written statement. Suit
        SHANTILAL GULABCHAND MUTHA v. TATA                       437
         ENGINEERING & LOCOMOTIVE CO. LTD.
       is of 1988. So far no written statement is filed .. Therefore,   A
       there shall be decree in favour of the plaintiffs and against
       the defendants under Order VIII Rule10 of the Code of Civil
       Procedure for a sum of Rs.9,99,388.30 with interest on the
       amount of Rs.5,66,000/- at 12% p.a. from the date of the
       suit till realization and costs. Prayer (a) only of the plaint   B
       is granted in the above terms. Decree be drawn up
       accordingly."
      9. The appellant take Notice of Motion to set aside the
 aforesaid judgment and decree which was dismissed and the
said order of dismissal has been approved by the division C
bench. We are not examining the issue as to whether such a
judgment and decree ex parte could be subjected to the
provisions of Order IX Rule 13 CPC but the court has not
examined as to whether the suit was filed within limitation and
whether on the basis of pleadings, the relief granted by the court D
could have been granted. The court did not even consider it
proper to examine the case prima facie before passing the
decree, as is evident from the above quotation. The same is
complete impugned judgment.
      10. As the Trial Court failed to meet the parameters laid         E
down by this court to proceed under Order VIII Rule 10 CPC,
the judgment and decree of the Trial Court dated 12.11.2003
is set aside and the case is remanded to the Trial Court to
decide afresh. The appellant is at liberty to file the written
statement within a period of 3 weeks from today and the Trial           F
Court is at liberty to proceed in accordance with law thereafter.
As the matter is very old, we request the Trial Court to conclude
the trial expeditiously. The Original Record, if any, may be sent
back forthwith.
    Before parting with the case, we would like to clarify that         G
we have not decided the issue as to whether application under
Order IX Rule 13 CPC in such a case is maintainable.
       11. The appeal is disposed of accordingly.
R.P.                                         Appeal disposed of.        H