Holding

A conviction for rape cannot be upheld when the alleged victim's account is implausible and unsupported by medical or corroborative evidence, leading to the appellant's acquittal.

Summary

The appellant was convicted under IPC sections 376 (rape) and 506 (criminal intimidation) based on the testimony of the prosecutrix and her husband, who alleged that the appellant had raped the woman in a factory and threatened her. Medical examination found no injuries and only semen on the victim's swabs and clothing, which was not linked to the appellant as his blood sample was not taken. Several persons present at the factory were not examined as witnesses, and the defence factory owner testified that there was no reason for the husband to be at the premises. The Supreme Court held that while a prosecutrix's evidence is crucial, it cannot be accepted when the narrative is implausible and lacks corroborative medical or eyewitness evidence. Consequently, the Court set aside the trial and High Court judgments and acquitted the appellant.

Issues considered

Whether the testimony of the prosecutrix can sustain a conviction for rape in the absence of corroborative medical evidence and when the story appears improbable.
Whether the presence of semen on the victim's clothing, without DNA linkage to the accused, is sufficient to prove rape.
Whether the failure to produce eyewitnesses present at the alleged crime scene affects the prosecution's case.
Whether the defence witness's testimony regarding the lack of motive undermines the prosecution's narrative.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 376, s. 506

Subjects

rapeIPC 376criminal intimidationIPC 506evidentiary standardsmedical evidencesemen evidencecorroborationacquittalcriminal appeal

Judgment

[2009] 14 (ADDL.) S.C.R. 80
"

A TAMEEZUDDIN@ TAMMU
..
v.
STATE OF (NCT) OF DELHI
(Criminal Appeal No.1289 of 2004)
AUGUST 26, 2009
B
[HARJIT SINGH BEDI AND AFTAB ALAM, JJ.] -
,._
PENAL CODE, 1860

c ss.. 376 and 506 allegations by prosecutrix and her
husband of rape- on her-Doctor examining the prosecutrix
~
found no evidence of rape or any injury on her person -
Conviction by trial court - Affirmed by High Court - Held: It
is true that in a case of rape, evidence of prosecutrix must .,,
be given predominant consideration, but to hold that her
D
evidence has to be accepted even if the story is improbable
and belies logic, would be doing violence to the very principles
which govern the appreciation of evidence in a criminal matter
- The prosecution story in the instant case is indeed
improbable - Prosecutrix had narrated the sordid story to her
E husband on his return from the market and he very gracefully
told the accused that everything was forgiven and forgotten, ~

but nevertheless lured him to the police station - If such
statement had indeed b(: en made by PW-2, there would have
bee[' no occasion to even go to the police station -
F Assuming, however, that the appellant was naive and unaware ;
that he was being led deceitfully to the police station, once
having reached there he could not have failed to realize his
predicament as the trappings of a police station are familiar
and distinctive - Even otherwise, _the evidence shows that the
G accused had been running a kirana shop in the area, and ___,._

would, thus, have been aware of the location of the police
station - In this view of the matter, some supporting evidence
was essential for the prosecution case - Medical evidence
~
does not support commission of rape - Moreover, two or three
H 80
- TAMEEZUDDIN@ TAMMU v. STATE OF {NCT) OF
DELHI
81

persons who were present in the factory premises when rape A
was stated to have been committed, were not examined in
court as witnesses, though their statements had been
recorded during the course of investigation - In this
background, merely because vaginal swabs and salwar had
semen stains thereon would, at best, be evidence of B
~
commission of sexual intercourse but not of rape -
Significantly also, the semen found was not co-related to
·t
accused as his blood samples had not been taken - In this
background the evidence of defence witness becomes very
relevant - This witness testified that there was no occasion c
for PW-2 to have come to the factory as no payment was due
to him on any account - Courts below were remiss in holding
that as no written accounts had been maintained by defence
witness and no receipt relating to any earlier payment to PW-
"
2 had been produced by him, his testimony was not D
acceptable, the more so, as the factory was a small one and
he was a petty factory owner -Accused had been sentenced
to imprisonment for a term of seven years, he had already
exceeded that period before his release on bail -Judgments
of trial court and High Court are set aside and the accused is
acquitted. E
...
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1289 of 2004.
-i
From the Judgment & Order dated 18.12.2001 of the High F
Court of Judicature at Delhi at New Delhi in Criminal Appeal
No. 93 of 1997.

Seeraj Bagga (AC.) for the Appellant.

Anil Katiyar for the Respondent. G
-f-·

The following Order of the Court was delivered

ORDER

The appellant herein, Tarneezuddin, was convicted under H
82 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A Sectiori 376 of the IPC by the Court of Sessions and sentenced
to undergo R.I. for 84 months and a fine of Rs.14,000/- and in
default of payment of fine to further undergo R.I. for six months
and under Section 506 (ii) of the IPC, to a sentence of 36
months and fine and in default of payment of fine, to undergo
B R.I. for one month, both the sentences were directed to run
concurrently.

As per the prosecution story PW .1, the prosecutrix, and her t-
husband, PW-2 Dinesh Mishra who was a rickshaw puller by
c profession, had come to Delhi along with her children two
months prior to the occurrence. On 28th September, 1995, PW-
1 & PW-2 had gone to the latter's ex-employer, a factory owner
DW.1 Mohd. Zaki, to recover some money that was due to him.
When they reached the factory premises they found that DW-1
was not present but several other persons i!1cluding the "
D appellant, a shop keeper who was known to PW-2, were
present. The appellant sent PW .2 out of the factory on the
pretext of buying some meat and after some of the workmen
who were present had left, he caught hold of the prosecutrix,
took her to the first floor of the factory and then committed rape
E upon her and threatened that in 'Case she reported the matter
to anybody she would be dealt with. PW.2 returned a short while .,
later and she narrated the entire story to him. PW. 2, however,
told the appellant that whatever had happened was to be
forgotten and that bygones were to be bygones but he
F nevertheless took the appellant to the police station
accompanied by PW-1 and their children and lodged the FIR
against the appellant. The appellant was also arrested in the
police station at that very time and in due course was sent up
for trial.
G
In order to support its case the prosecution examined PW.1
the prosecutrix; PW.2, Dinesh Chand Mishra, her husband;
PW.9 Dr. Charu Lata who had examined the prosecutrix but had
found no evidence of rape or any injury on her person and
PW .1 O Dr. R. Dyal, who had medically examined the appellant
H
" ,.
TAMEEZUDDIN @ TAMMU v. STATE OF (NCT) OF
DELHI
and opined that there was nothing to suggest that he was
83

A
incapable of performing sexual intercourse. Dr. Charu Lata also
took the vaginal swabs of the prosecutrix and removed the
salwar that she was wearing at that time and sent both these
articles for examination to the FSL. The report of the Laboratory
revealed the presence of semen on the vaginal swabs as well B
as on the salwar.

The trial Court while commenting on the evidence of PW.1
and PW .2 observed that it would be difficult to believe that any
self~respecting woman or her husband would come forward to
make a humiliating statement against her honour and that, in
c
"1r
such a situation, her statement alleging rape was to be
accepted more particularly as there was no discrepancy of the
,. nature that could be fatal to the prosecution's case. Accepting
the aforesaid evidence, the trial Court convicted and sentenced
the accused as already mentioned above. The judgment of the D
trial Court was affirmed by the High Court in appeat The matter
is before us at the instance of the accused by way of special
leave.

Mr. Bagga, the learned amicus curiae for the appellant has, E
~
first and foremost, pointed out that the story projected by the
....... prosecution was on the face unacceptable, in the light of the
fact that PW.1 had narrated the entire story to PW.2, her
husband, but they had still managed to lure the appellant to the
police station and had handed him over to the police. He has F
submitted that this story did not fit in with normal human conduct
so as to inspire confidence in the prosecution story. He has
further pointed out that some corroboration for the ocular
account could have been found from the medical evidence but
this too was uncertain as Dr. Charu Lata PW.9 had deposed
~ G
that there was no evidence to suggest the commission of rape.
He has also submitted that as per the prosecution story itself
there were at least two persons present in the factory premises
at the time of the commission of the rape and (though as per
the statement of the investigating officer) their statements had
H
84 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. "
"'
A been recorded under Section 161 of the Cr.P.C., they had not "
been produced in evidence. He has accordingly pointed out that
the defence story projected by DW.1 Mohd. Zaki, the owner of
the factory premises, that no amount was due towards PW.2,
intact knocked out the foundations of the prosecution story.
B
The learned counsel for the State has, however, submitted
that the courts below had found, on a minute appreciation of
the evidence, that the statements of PW .1 and PW2 had to be
accepted and merely because the medical examination was
indeterminate and did not reveal anything categoric in favour
c of the prosecution, was no- reason to disbelieve their
statements, more particularly as semen stains had been found i"
on the swabs and the salwar.
',f
It is true that in a case of rape the evidence of the
D prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story is
improbable· and belies logic, would be doing violence to the
very principles which govern the appreciation of evidence in a
criminal matter. We are of the opinion that story is indeed
E improbable. We note from the evidence that PW.1 had narrated
the sordid story to PW.2 on his return from the market and he
had very gracefully told the appellant that everything was forgiven " ..,,
and forgotten but had nevertheless lured him to the police
station. If such statement had indeed been made by the PW.2-
F there would have been no occasion to even go to the police
station. Assui:ning, however, that the appellant was na"ive and
unaware that he was being lead deceitfully to the police station,
once having reached there he could not have failed to realize
his predicament as the trappings of a police station are familiar
and distinctive. Even otherwise, the evidence shows that the
G
appellant had been running a kirana shop in this area, and --1-
would, thus, have been aware of the location of the Police
Station. In this view of the matter, some supporting evidence
was essential for the prosecution's case. As already mentioned ~

above the medical evidence does not support the commission
H
TAMEEZUDDIN @ TAMMU v. STATE OF (NCT) OF 85
~.
... DELHI
JI;
of rape. Moreover, the two or three persons who were present A
in the factory premises when the rape had been committed
'"""""'
' were not examined in Court as witnesses though their
statements had been recorded duri~ the course of the
investigation. In this background, merely because the vaginal
swabs and the salwar had semen stains thereon would, at best. B
be evidence of the commission of sexual intercourse but not
of rape. Significantly also, the semen found was not co-related
i to the appellant as his blood samples had not been taken. In
this background the evidence of the defence witness, Mohd.
Zaki becomes very relevant. This witness testified that there
c
... was no occasion for PW.2 to have come to the factory as no
payment was due to him on any account. The courts below were
to our mind remiss in holding that as no written accounts had
~
been maintained by Mohd. Zaki and no receipt relating to any
earlier payment to PW.2 had been produced by him, his
' testimony was not acceptable, the more so, as the factory was D
a small one and Mohd. Zaki was a petty factory owner.

We also see from the orders passed by this Court from
time to time and particularly the Order of 25th October, 2004
that the counsel for the appellant had pointed out that though E
~
the appellant had been sentenced to imprisonment for a term

... of seven years, he had already exceeded that period but was
still in custody and he was accordingly bailed out after verifying
this fact on 16th November 2004. In normal circumstances we
would not have passed a detailed order in this background but F
as an allegation of rape, is one of the most stigmatic of crimes,
it calls for intervention at any stage.

Before ending we must record our appreciation of Mr.
Bagga's efforts.
G
_;>f-
We accordingly allow the appeal, set aside the judgments
of the trial Court and the High Court and order the appellant's
acquittal.
R.P. Appeal allowed. H