STATE OF HARYANAversusBASTI RAM

                       (2013] 4 S.C.R. 850


A                     STATE OF HARYANA
                                 v.
                           BASTI RAM
                (Criminal Appeal No. 352 of 2006)
                         APRIL 02, 2013
B
         [A.K. PATNAIK AND MADAN B. LOKUR, JJ.]

       Penal Code, 1860 - ss.376(2)(g), 366, 342 and 506 -
  Gang rape of girl below 16 years of age - Conviction by trial
C court relying on evidence of prosecutrix - High Court acquitted
  the accused - On appeal, held: High Court committed error
  of Jaw in ignoring the evidence of prosecutrix - Case remitted
  to High Court.

0      Respondent-accused alongwith another accused
  was prosecuted for having raped a girl below 16 years
  of age. In her police statement, the victim girl alleged that
  both the accused had committed rape on her for a period
  of six months and they had also confined her for a period
E of 10 days and raped her several times and thereafter
  sent her to her parents through two persons.

       Trial Court concluded that the prosecutrix was aged
  below 16 years and relying on her testimony held that both
  the accused were guilty of gang rape and convicted them
F u/s.376{2)(g) and also found them guilty for offences u/
  ss.366, 342 and 506 IPC. They were sentenced to 10
  years RI and fine with default clause.

      High Court reversed the conviction order and
G acquitted both the accused. Hence the present appeal by
  the State against the respondent- accused.

        Disposing of the appeal and remitting the matter to
    the High Court, the Court

H                               850
         STATE OF HARYANA v. BASTI RAM                   851

     HELD: 1. The High Court erred in not taking into           A
account the statement and testimony of the prosecutrix
that the respondent had raped her on several occasions
and thereby acquitting him. The High Court committed an
error of law in not considering the evidence put forward
by the prosecutrix (who was less than 16 years when she         B
was raped) and ignoring the settled position in law that
if the sole testimony of the prosecutrix is credible, a
conviction can be based thereon without the need for any
further corroboration. [Para 1] [852-E-G]

    Vijay @ Chinee v. State of Madhya Pradesh (2010) 8          C
 SCC 191: 2010 (8) SCR 1150 State of Rajasthan v. Babu
 Meena, 2013 (2) SCALE 479 - relied on.

     2. The High Court had not discussed the statement
of the prosecutrix under Section 164 of the Cr.P .C. before     o
the Magistrate nor her testimony before the Trial Judge.
Her statement was detailed and the High Court should
have considered that statement. If it was found to be not
credible, the High Court was entitled to reject it and also
her testimony before the Trial Judge. But, to completely        E
ignore what the prosecutrix had said, merely on the basis
of a handful of letters which she had written (even though
she had explained the circumstances in which she had
written those letters) is a rather unsatisfactory way of
dealing with the entire case. [Para 30] [860-H; 861-A-B]
                                                                F
      3. Consideration of the case on its merits by this
  Court without the opinion of the High Court would
  a,mount to taking away the right of appeal available to the
· respondent. For a proper appreciation of the case, it is
  necessary for this Court to have the views of the High        G
  Court on record. This is important since the High Court
  has reversed a finding of conviction given by the Trial
  Judge. Therefore, the more appropriate course of action
  would be to set aside the impugned judgment and order
  passed by the High Court and remand the matter for            H
             SUPREME COURT REPORTS                  [2013] 4 S.C.R.
    852

A   reconsideration on merits after taking into account the
    entire evidence on record, including the statement and
    testimony of the prosecutrix as well as the law on the
    subject. [Paras 31 and 32] [861-D-F]
                          Case Law Reference:
B
          2010 (8) SCR 1150         relied on              Para 29

          2013 (2) SCALE 479        relied on              Para 29

      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
C No. 352 of 2006.

        From the Judgment and Order dated 10.12.2003 of the
    High Court of Punjab & Haryana at Chandigarh in Crl. A. No.
    162-SB of 1988.

D         Vikas Sharma, Kamal Mohan Gupta for the Appellant.

        Prakash Pandey, Rekha Pandey, Raghav Pandey, Dr.
    Sushi! Balwada for the Respondent.

          The Judgment of the Court was delivered by
E
        MADAN 8. LOKUR, J. 1. The question for our
  consideration is whether the High Court erred in not taking into
  account the statement and testimony of H.L. that the respondent
  had raped her on several occasions and thereby acquitting him.
F In our opinion, the High Court committed an error of law in not
  considering the evidence put forward by the prosecutrix (who
  was less than 16 years when she was raped) and ignoring the
  settled position in law that if the sole testimony of the prosecutrix
  is credible, a conviction can be based thereon without the need
G for any further corroboration.

    The facts:

         2. On 12th March 1990, PW-3 Sardara Singh, a resident
    of Village Farmana, lodged a complaint with PW-1 ASI Mehar
H
         STATE OF HARYANA v. BASTI RAM                      853
              [MADAN B. LOKUR, J.)

Singh of Police Station Kharkhoda to the effe'ct that his          A
granddaughter H.L. aged about 14-15 years and staying with
him had been missing since 8.00 p.m. on 27th February 1990.
According to the complainant, H.L. had left the house for
answering the call of nature but did not come back. Efforts were
made to trace her out, including at the residence of relatives     B
and at her parental home in Nainital but without success. The
complaint of Sardara Singh further stated that he suspected that
Mohinder Singh and Satte had enticed her away.

   3. The complaint was registered as a First Information          c
Report and investigations commenced to trace out H.L.

     4. On 20th March 1990 the investigating officer examined
Mohinder Singh and he stated that on 27th February 1990 he
and Satte took H.L. from Village Farmana to the Interstate Bus
Terminal in Delhi. Their intention was to sell her to somebody     D
through Satte and then to equally divide the proceeds. As a
consequence of this, Satte took H.L. to Bareilly and sold her
to Jamaluddin.

     5. It appears that Sardara Singh had wrongly (and perhaps     E
deliberately) accused Mohinder Singh of enticing away H.L. and
even Mohinder Singh had given a false statement.

    6. Be that as it may on 6th April 1990, PW-22 ASI Jaidev
Singh located H.L. and her father and on 7th April 1990 H.L.
was produce.d before the Judicial Magistrate 1st Class, Sonepat    F
where her statement was recorded under Section 164 of the
Criminal Procedure Code (for short the Cr.P.C.).

     7. In her statement given before the Judicial Magistrate,
H.L. stated that her father worked in Nainital. Her maternal       G
uncle Satish Prakash who got her admitted in a school at
Bhainswal sometime in June 1989 had brought her to Village
Farmana.

                                                                   H
    854     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A      8. Satish Prakash used to take H.L. to her school every
  morning on his scooter. From sometime in August 1989 he
  started misbehaving with her. She complained about the
  misbehaviour to her grandmother and to her aunt (wife of Salish
  Prakash) but to no effect. In her statement H.L. stated that frorr
B September 1989 onwards Salish Prakash began to rape her
  and did so several times. He was subsequently transferred to
  Panipat but in the meanwhile Basti Ram (the Respondent
  before us) came to Bhainswal and joined a Veterinary Hospital.
  H.L. further stated that apart from Salish Prakash, she was also
C raped by Basti Ram and fed up with this unpleasant situation,
  she expressed a desire to go back to her parental home at
  Nainital.

       9. H.L. then stated that on 27th February 1990 Salish
D Prakash and Basti Ram confined her in a quarter near the
  Veterinary hospital where they were working and they raped her
  several times. Eventually on 8th March 1990 she was taken by
  them to Delhi and handed over to two persons who were going
  to Nainital with the instructions that she should be dropped off
  at her parental home.
E
         10. In her statement H.L. stated that when she went to her
    parental home she found that it was locked and therefore from
    9th March 1990 to 20th March 1990 she lived with a neighbor,
    PW-19 Ram Singh who informed her father in Pant Nagar of
F   her arrival in Nainital. On 21st March 1990 the lock of her
    parental home was broken and she lived there till 4th April 1990
    and came to Delhi along with her father on 6th April 1990.

      11. Upon completion of investigations, the police
G authorities filed a charge sheet and on 3rd August 1990 the
  case was committed to the Sessions Court and registered as
  Sessions Case No. 22 of 6.11.1990/Sessions Trial No. 30 of
  1990 before the Additional Sessions Judge, Sonepat
  (Haryana).

H
           STATE OF HARYANA v. BASTI RAM                      855
                [MADAN B. LOKUR, J.]
Proceedings in the Trial Court:                                       A

      12. The Additional Sessions Judge charged Salish
Prakash and Basti Ram for offences punishable under
Sections 366, 376, 363, 506 and 342 of the Indian Penal Code
(for short the IPC) on 7th November 1990 to which they pleaded        B
not guilty. It appears that the charge of raping H.L. prior to 27th
February 1990 was inadvertently left out and therefore
additional charges were framed against Salish Prakash and
Basti Ram to include the commission of rape of H.L. prior to
27th February 1990. The two accused pleaded not guilty to the         C
additional charges also.

     The charges framed read as follows:

      1.    That you both on 27.2.90 in the area of Viii.
            Bhainswal Kalan kidnapped Kumari H.L. aged 15/            0
            16 years, a minor by taking her out of legal
            guardianship of her maternal grandfather Sh.
            Sardara Ram S/o Jai Pal R/o Farmana with intent
            that she may be forced or seduced to illicit
            intercourse and thereby committed an offence              E
            punishable u/s 366 IPC and within cognizance of
            this Court.

      2.    Secondly, you both, between 27.2.90 to 08.3.90, in
            the aforesaid area committed rape on the above
            named H.L. by committing ·sexual intercourse              F
            against her will or consent and thereby committed
            an offence punishable u/s 376 IPC and within
            cognizance of this Court.

      3.    Thirdly, you both on the aforesaid date kidnapped         G
            Kumari H.L. a minor under the age of 18 years from
            the lawful guardianship of her maternal grandfather
            Sardara Ram and thereby committed an offence
            punishable u/s 363 IPC and within cognizance of
            this Court.
                                                                      H
    856        SUPREME COURT REPORTS                 [2013) 4 S.C.R.


A         4.    Fourthly, yo1• both on same date and place
                committed crin.inal intimidation by threatening H.L.
                to cause death and thereby committed offence
                punishable u/s 506 IPC and within cognizance of
                this Court.
B
          5.     Fifthly, you both on the same date and place
                 wrongly confined H.L. in Govt. Quarter of Veterinary
                 Hospital Bhainswal Kalan from 27.2.90 to 08.3.90
                 and thereby committed an offence punishable u/s
                 342 IPC and within cognizance of this Court.
c
          6.     Sixthly that you accused Salish Kumar committed
                 rape on aforesaid H.L. by committing sexual
                 intercourse against her will or consent several times
                 from September, 1989 to February, 1990 at your
D                house in the area of village Farmana and thereby
                 committed an offence punishable under Section
                 376 l.P.C. and within cognizance of this Court.

          7.     Seventhly, that you accused Basti Ram committed
                 rape on aforesaid H.L. against her consent or will
E
                 several times between October, 1989 and
                 February, 1990 in Veterinary Hospital quarter
                 Bhainswal and thereby you committed an offence
                 punishable under Section 376 l.P.C. and within
                 cognizance of this Court.
F
         13. The prosecution examined as many as 24 witnesses
    while the defence examined one witness.
        14. The Trial Court first of all considered the issue
  regarding the age of H .L. It was noted that her birth certificate
G Exhibit PF gave her date of birth as 10th June 1974 but the
  school record as well as the evidence of one of the teachers
  in the school in Bhainswal indicated that her date of birth was
  27th June 1975. The father of the prosecutrix gave her date of
  birth as 10th June 1974 while her mother gave the date of birth
H as 27th June 1975. However, on an appreciation of the
          STATE OF HARYANA v. BAST! RAM                      857
               [MADAN 8. LOKUR, J.]

evidence and relying upon the birth certificate Exhibit PF the       A
Trial Court concluded that the date of birth of H.L. was 10th June
1974. Therefore, when she was raped between September
1989 and March 1990 she was below 16 years of age.

     15. The Trial Court then considered the issue of the            B
improbability of H.L. having been raped by Salish Prakash and
Basti Ram. The Trial Court was of the view that the statement
of the prosecutrix was credtble. She had complained to her
grandmother and to her aunt about being raped by Salish
 Prakash and Basti Ram, but it had no effect on them. As such,       C
she had little or no option but to submit to the demands of
Salish Prakash and Basti Ram. The Trial Judge held that in any
case since H.L. was below 16 years of age her consent to have
sexual intercourse with Satish Prakash and Basti Ram was
 meaningless.
                                                                     D
     16. On the basis of these findings the Trial Judge
concluded that Salish Prakash and Basti Ram had subjected
H.L. to rape and gang rape.

     17. On the issue whether Salish Prakash had kidnapped           E
H.L., the Trial Judge concluded that H.L. was under the
guardianship of her grandfather Sardara Singh and since
Salish Prakash had taken her away from the lawful guardianship
of her grandfather, he was guilty of kidnapping her. As such, it
was held that Salish Prakash was guilty of an offence
                                                                     F
punishable under Sections 363 and 366 of the l.P .C. Basti Ram
was, however, found not guilty of the charge of kidnapping H.L.

     18. The Trial Judge considered the statement of PW-3
Sardara Singh and found that he was related to both Salish
Prakash and Basti Ram. In fact Salish Prakash is his nephew          G
(brother's son) while Basti Ram is the cousin of Salish Prakash.
Under these circumstances, Sardara Singh tried to save Salish
Prakash and Basti Ram from being involved in the kidnapping
and rape of -H.L. and he also went to the extent of cooking up
a story to implicate Mohinder Singh and Satte. In these              H
    858     SUPREME COURT REPORTS                 [2013] 4 S.C.R.


A   circumstances, the Trial Judge did not give weightage to the
    evidence of Sardara Singh and relied primarily on the testimony
    of H.L. as well as the statement that she gave before the
    Magistrate under Section 164 of the Cr.P.C.

         19. The Trial Judge also considered some letters said to
8
    have been written by H.L. to Mohinder Singh professing
    intimacy with him but the prosecution version was accepted that
    these letters were written at the instance of Salish Prakash so
    as to put the blame on Mohinder Singh.

C       20. The defence witness DW-1 Dr. S.S. Wadhwa was
    disbelieved by the Trial Judge on the question of the age of the
    prosecutrix. According to this witness, H.L. was between 16
    and 17 years of age, but he did not have the original medical
    report on the basis of which he had come to this conclusion.
D
        21. In their statement under Section 313 of the Cr.P.C. the
    accused stated that H.L. was a girl of 'bad character' and that
    they had been falsely implicated at the instance of the
    investigating agency.
E       22. After going through the evidence on record, the
  Additional Sessions Judge, Sonepat by a judgment and order
  dated 1st April 1992 convicted Salish Prakash and Basti Ram
  of having committed gang rape on H.L. from 27th February
  1990 to 8th March 1990. Salish Prakash was also found guilty
F of having raped H.L. from September 1989 to February 1990.
  Basti Ram was found guilty of having raped H.L. from October
  1989 to February 1990. Both the accused were also found
  guilty of offences punishable under Sections 366, 342 and 506
  of the IPC.
G
      23. Subsequently by an order dated 3rd April 1992 Salish
  Prakash and Basti Ram were sentenced under Section
  376(2)(g) of the IPC to 10 years rigorous imprisonment for the
  gang rape of H.L. They were also asked to pay a fine of
H Rs.2,000/- and in default thereof to undergo further rigorous
         STATE OF HARYANA v. BAST! RAM                     859
              [MADAN B. LOKUR, J.]

imprisonment for one year. For the remaining offences, they        A
were sentenced to various terms of imprisonment, but all
sentences were to run concurrently and, therefore, we are not
going into the details of the punishment awarded.

Proceedings in the High Court:                                     B
     24. Feeling aggrieved by the conviction and sentence, both
the convicts preferred an appeal in the High Court of Punjab
and Haryana, being Criminal Appeal No. 162-SB/1992.

     25. The High Court examined the evidence in a rather          C
cursory manner &nd after noting the contentions urged by
learned counsel for the parties, the High Court held as follows:

    "After going through the contention of learned counsel for
    both the parties, I am of the opinion that ASI Jai Dev PW      D
    22 has admitted that he recorded the statement of
    Mohinder who has stated that he and Sat Narain had
    enticed away H.L. and, thereafter, sent her to Bareli with
    somebody else and that he can get H.L. recovered. In
    Ex.D1 H.L. has clearly written to Mohinder that she was        E
    absent from School for four days while accompanying
    Mohinder to Delhi and she also admitted that she has been
    questioned by Salish Kumar appellant and her maternal
    grandfather and grand-mother with regard to absence for
    four days. Salish also reprimanded her that she had been
    missing for four days without disclosing her whereabouts       F
    and he would stop her from going to School and send her
    to her father's house after performing betrothal to some
    boy. In letter Ex. DB also she has named Dr. Satya asking
    help from him for making a programme in the day time as
    it is difficult to come out of the house at night.             G

    Taking the totality of facts and the circumstances of the
    case into consideration the above evidence casts heavy
    doubt on the prosecution version and does not inspire any
    confidence. Therefore, I have no option but to accept this     H
    860      SUPREME COURT REPORTS                 (2013] 4 S.C.R.


A         appeal and acquit both the appellants of the charges
          framed against them after setting aside the order of
          conviction and sentence passed by the Trial Court. Bail
          bonds tendered before the trial Court stand discharged."

B        26. On the above basis, the learned Single Judge allowed
    the appeal and set aside the conviction of Salish Prakash and
    Basti Ram.

      27. The State of Haryana has challenged the judgment and
C order passed by the learned Single Judge of the High Court.

    Discussion and conclusion:

        28. During the pendency of the appeal before us, Salish
    Prakash expired and the appeal only survives as against Basti
0   Ram.

        29. The law on the issue whether a conviction can be
  based entirely on the statement of a rape victim has been
  settled by this Court in several decisions. A detailed discussion
  on this subject is to be found in Vijay @ Chinee v. State of
E Madhya Pradesh, (2010) 8 SCC 191. After discussing the
  entire case law, this Court concluded in paragraph 14 of the
  Report as follows:-

          "Thus, the law that emerges on the issue is to the effect
F         that the statement of the prosecutrix if found to be worthy
          of credence and reliable, requires no corroboration. The
          Court may convict the accused on the sole testimony of
          the prosecutrix."

       This decision was recently adverted to and followed in
G State of Rajasthan v. Babu Meena, 2013 (2) SCALE 479.

       30. A reading of the judgment and order of the High Court
  indicates that it has not discussed the statement of H.L. under
  Section 164 of the Cr.P.C. before the Magistrate nor her
H testimony before the Trial Judge. On going through her
          STATE OF HARYANA v. BASTI RAM                      861
               [MADAN B. LOKUR, J.]

statement recorded by the Magistrate, we find that it is rather     A
detailed and the least that was expected of the High Court was
to consider that statement. If it was found to be not credible,
the High Court was entitled to reject it and also her testimony
before the Trial Judge. But, to completely ignore what the
prosecutrix had said, merely on the basis of a handful of letters   B
which she had written (even though she had explained the
drcumstances in which she had written those letters) is a rather
 unsatisfactory way of dealing with the entire case.

      31. Normally, we would have gone through the entire           C
evidence on record and decided whether the acquittal of Basti
Ram should be sustained or not. However, in the absence of
any discussion or analysis of the evidence by the High Court
in first appeal, we are of the opinion that a right of appeal
available to Basti Ram would be taken away if we were to
consider the case on its merits without the opinion of the High     D
Court. Additionally, for a proper appreciation of the case, it is
necessary for us to have the views of the High Court on record.
This is important since the High Court has reversed a finding
of conviction given by the Trial Judge.
                                                                    E
     32. Under the circumstances, the more appropriate course
of action would be to set aside the impugned judgment and
order passed by the High Court and remand the matter for
reconsideration on merits after taking into account the entire
evidence on record, including the statement and testimony of        F
H.L. as well as the law on the subject. We do so accordingly.

     33. Since the allegation of rape is of the year 1989-1990,
we request the High Court to accord high priority to the disposal
of the case.
                                                                    G
     34. Appeal is disposed of.

K.K.T.                            Appeal disposed of & Matter
                                  remitted to High Court.
                                                                    H