Penal Code, 1860 – ss. 376 and 506 – Rape – PW.2prosecutrix alleged that appellant caught hold of her on a common path of villages and dragged her in the bushes – She raised hue and cry but nobody was there at the place of occurrence – Appellant committed rape on her – Consequent to which, prosecutrix got pregnant – After 7 months of alleged commission of offence, FIR was lodged – Trial Court convicted appellant u/ss. 376 and 506 IPC – Conviction affirmed by the High Court – On appeal, held: High Court proceeded on the basis of testimony of prosecutrix and extra- judicial confession made before PW.4 and PW.5 – There were different versions of PW.3 and PW.4 about the disclosure of the incident to them by the prosecutrix – PW.4 evidence was based on prosecutrix going to him and revealing him about the incident whereas, PW.3 stated that after prosecutrix told her about the alleged rape, PW.3 disclosed the factum of alleged rape to PW.4 – And, prosecutrix stated that incident was disclosed by PW.3 to PW.4 – This falsified the version of PW.4 – In such circumstances, not safe to draw support from alleged extra-judicial confession made by appellant to PW.4 – PW.5 too gave contradictory version of facts regarding appellant coming to him and requesting compromise with prosecutrix – Insofar as prosecutrix is concenred, if she had raised hue and cry, it was very unlikely that the labourers who used the common path did not hear it – Thus, unsafe to convict appellant on testimony of the prosecutrix – Appellant entitled to the benefit of doubt.
Evidence – Critical examination of evidence in an appeal by special leave – Held: This Court has indulged in a closer look at the evidence in these proceedings having regard to the need to do so in view of the fact that the complaint itself is lodged after 7 months – If the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unreliable to act upon it even in an appeal by special leave, such a critical examination may not be unwarranted.
Delay/ Laches – Offence of Rape – Delay of 7 months in lodging the FIR – Held: There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape – If the case is reported immediately apart from the inherent strength of the case flowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance – It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted – Possibly, a medical examination may have revealed signs of any resistance or injuries.
Allowing the appeal, the Court
HELD: 1. There is admittedly a delay of 7 months in lodging the FIR in the case of alleged rape. If the case is reported immediately apart from the inherent strength of the case flowing from genuineness attributable to such promptitude, the perceptible advantage would be the medical examination to which the prosecutrix can be subjected and the result of such examination in a case where there is a resistance. It is the case of the prosecution that she raised hue and cry and therefore apparently she would have resisted. Possibly, a medical examination may have revealed signs of any resistance or injuries. In this case the High Court has proceeded on the basis of testimony of the prosecutrix and sought to fortify it by the extra judicial confession made before PW4 and PW5. [Para 14][964-B-D]
2. As far as PW 4 is concerned, his evidence is based on the prosecutrix going to him on 05/07/2000 and revealing to him about the incident whereas PW3, the maternal aunt of the prosecutrix clearly says that after prosecutrix told her about the alleged rape and when PW4 came to visit the same village where his in-laws also resides at that juncture on 07/07/2000, the factum of the alleged rape was disclosed to him and he came to know on the said basis. This is a completely different version from what PW4 has spoken. If PW3 is to be believed, then knowledge about the alleged incident was gained by P.W.4 only on 07/07/2000 and that too from PW3 instead he sets up the case that on 05/07/2000 the prosecutrix went to his house and told him about the same. In fact, even the prosecutrix in her version has no such case. Rather, the prosecutrix would say that the incident was disclosed by P.W.3 to P.W.4. This completely falsifies the version of P.W.4 that on 5.7.2000 the prosecutrix went and told him about the incident including about the threat of using the knife. P.W.4 as noted in further cross examination would state that he did not tell the police on the basis that she had not told him about it. This would again show that version of P.W.4 that prosecutrix had went and told him about the incident, cannot be believed. No doubt, P.W. 4 seeks to state that he did not tell the Police about what the prosecutrix told him thinking that prosecutrix would have told the police about it. It does not appear to be safe. In such circumstances, it may not be safe to draw support from the alleged extra judicial confession alleged to have been made by the appellant to him. [Para 15][964-D-H; 965-A]
3. As far as P.W.5 who again has been believed by the courts, it was noticed that in the cross examination he categorically states that the appellant and also co-accused did not ask him for compromise. This is contrary to his version that on the way back to his home on 09/07/2000 he met him and he sought for a compromise. It is also to be noted that PW 4 has stated in his cross examination that PW5 had met him on 05/07/2000 along with the appellant. This is not considered by the courts below. This Court has indulged in a closer look at the evidence in these proceedings having regard to the need to do so in view of the fact that the complaint itself is lodged after 7 months. If the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unreliable to act upon it even in an appeal by special leave, such a critical examination may not be unwarranted. [Para 16][955-E-F]
4. If this Court does not place confidence in the deposition of PW4 and PW5 then the case would depend upon the credibility of PW2, the prosecutrix. The incident is alleged to have taken place near a path which has been admitted by the prosecutrix and her aunt PW3 as common path. If indeed the prosecutrix has raised hue and cry as in the case reported in 2013 (9) SCC 113, it is very unlikely that the labourers who are supposed to haunt the common path could not hear it. There is a case of the appellant that the evidence would make out a case of consensual sex. It is true that in the High Court, it is recorded that there is no case of consensual sexual intercourse as such argued but the case is to be decided on the basis of evidence. In the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt. [Para 17][965-G, H; 966-A-B]
Vijayan v. State of Kerala (2008) 14 SCC 763 ; Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]
10 SCR 196 – relied on.
State of Himachal Pradesh v. Shree Kant Shekari AIR 2004 SC 4404 : [2004] 4 Suppl. SCR 380 ; Tulshidas Kanolkar v. State of Goa (2003) 8 SCC 590 : [2003]
4 Suppl. SCR 978 ; Ganga Kumr Srivastava v. State of Bihar (2005) 6 SCC 211 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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