State (Govt. of NCT of Delhi) vs Pankaj Chaudhary and Ors.

Code of Criminal Procedure,1973 – s.391 – Power under – Scope of – Discussed.

Code of Criminal Procedure,1973– s.340– Pre-conditions for initiating proceedings under – Discussed.

Evidence – Rape – Sole testimony of the prosecutrix – Appreciation of – Discussed.

Disposing of the appeals, the Court

HELD : 1.1 Evidence of the prosecutrix is corroborated by the MLC. The evidence of the prosecutrix is also corroborated by FSL Report which shows presence of human semen on the petticoat of the prosecutrix. [Paras 13, 15][87-F; 88-C]

1.2 The prosecutrix had no motive to falsely implicate the accused. In their statement under Section 313 Cr.P.C., the respondents/accused have stated that the prosecutrix was of bad character and she was indulging in prostitution regarding which they have lodged complaint against her and they have been falsely implicated in the case. As pointed out by the trial court, nothing was brought on record by the accused to show that they have lodged complaint against the prosecutrix. DW-1, the President of the jhuggi area stated that about 7-8 women including the prosecutrix have been indulging in prostitution regarding which he has lodged the complaint. There is nothing on record to suggest that the accused were in any way involved in making such complaints against the prosecutrix and other women. The version that they lodged complaint against the prosecutrix and therefore, they have been falsely implicated in the case, is not substantiated by any record. [Para 20][90-C-E]

1.3 The power conferred under Section 391 Cr.P.C. is to be exercised with great care and caution. In dealing with any appeal, the appellate court can refer to the additional evidence only if the same has been recorded as provided under Section

391 Cr.P.C. Any material produced before the appellate court to fill-up the gaps by either side cannot be considered by the appellate court; more so, to reverse the judgment of the trial court. The High Court took into consideration the materials produced by the Bar, namely, complaints allegedly made against the prosecutrix and other women including the one allegedly given on 21.07.1997 just one week prior to the incident. The High Court was not right in taking into consideration those complaints produced at the time of arguments in the appeal. Even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent. Even a woman of easy virtue is entitled to privacy and it is not open to any person to violate her and she is equally entitled to protection of law. Further, the evidence of such a woman cannot be thrown overboard merely because she is a woman of easy virtue. [Paras 21, 22][90-G-H; 91-A-C]

1.4 Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose moral character” is permissible to be drawn from that circumstance alone. A woman of easy virtue also could not be raped by a person for that reason. While so, the High Court erred in placing reliance upon the complaints allegedly made against the prosecutrix to doubt her version and to hold that a false case has been foisted against the accused. Conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. There is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [Paras 23, 24][91-D, F-H; 92-A-B]

1.5 The trial court which had the opportunity of seeing and observing the prosecutrix, found the testimony of the prosecutrix reliable being corroborated by her mother’s evidence, medical evidence, FSL report and other circumstances viz. absence of motive for any false implication etc. The High Court failed to appreciate the testimonies of DWs 1 and 2 who categorically stated that the prosecutrix had come back and was abusing neighbours. The evidence of DWs 1 and 2 clearly shows that the prosecutrix was let out by the police at or about 08.20 PM on 28.07.1997. Mere fact that FIR No.558/97 under Section 160 IPC was registered at 09.20 PM does not indicate that the prosecutrix and other quarrelling ladies were in the police custody till

09.30 PM on 28.07.1997 (with respect to the offence in FIR No.558/97). [Paras 25, 29 and 30][92-B-C; 93-H; 94-A-B]

1.6 There were two sets of persons and two sets of officers involved in FIR No.558/97 and FIR No.559/97. The aspect regarding FIR No.558/97 was not put to the witnesses even before the trial court. Everything was brought about in appeal as additional evidence in exercise of the power of the appellate court under Section 391 Cr. P.C. Placing of heavy reliance by the High Court upon the contents in FIR No.558/97 was not a correct approach. Unfortunately, the High Court was swayed by the Departmental Enquiry Report prepared by Joint Commissioner of Police. The High Court was not right in placing heavy reliance upon the report of the Joint Commissioner and the report of Deputy Commissioner who were not examined before the court. [Paras 31, 32 and 33][94-C-D, H]

1.7 Based upon the report of Joint Commissioner of Police and the report of the DCP, the High Court made disparaging remarks against the police officials and directed prosecution against the police under Sections 193 and 195 IPC. The police officials were neither party nor summoned by the High Court before making such disparaging remarks and giving directions against them in the appeal against the conviction. Any disparaging remarks and direction to initiate departmental action/prosecution against the persons whose conduct comes into consideration before the court would have serious impact on their official career. Since the High Court had passed strictures against the police officials who were involved in the investigation in FIR No.559/1997 without affording an opportunity of hearing to them, the disparaging remarks are liable to be set aside. [Paras 34, 36][95-A-B, D; 97-D]

1.8 The object of Section 340 Cr.P.C. is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or evidence given in court during the time when the document or evidence was in custodian legis and whether it is also expedient in the interest of justice to take such action as required under Section 340 Cr.P.C. Before directing the prosecution to be initiated under Section 195 Cr.P.C., the court has to follow the procedure under Section 340 Cr.P.C. and record a finding that “it is expedient in the interest of justice……..”. Though wide discretion is given to court under Section 340 Cr.P.C., the same has to be exercised with care and caution. To initiate prosecution under Section 195 Cr.P.C too readily that too against the police officials who were conducting the investigation may not be a correct approach. There are two preconditions for initiating proceedings under Section 340 Cr. P.C.- (i) materials produced before the court must make out a prima-facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 Cr.P.C. and (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence. [Paras 37-39][97-E-H; 98-F-G]

1.9 Prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and prosecution ought to be ordered where it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. The High Court has not recorded a finding that “it is expedient in the interest of justice to initiate an inquiry into the offences punishable under Sections 193 and 195 IPC against the police officials and under Section 211 IPC against the prosecutrix”. Without affording an opportunity of hearing to the police officials and based on the materials produced before the appellate court, the High Court was not right in issuing direction to the Registrar General to lodge a complaint against the police officials and the said direction is set aside. [Paras 41, 42][100-E-F; 101-C-D] Amarsang Nathaji as himself and as karta and manager v. Hardik Harshadbhai Pateland Others (2017) 1 SCC

113 : [2016] 12 SCR 80 ; Chajoo Ram v. Radhey Shyam and Another (1971) 1 SCC 774 : [1971] Suppl. SCR

172 – relied on.

State of Maharashtra and Another v. Madhurkar Narayan Mardikar (1991) 1 SCC 57 ; State of Punjab v. Gurmeet Singh and Others (1996) 2 SCC 384 : [1996]

1 SCR 532 ; Vishnu alias Undrya v. State of

Maharashtra (2006) 1 SCC 283 ; State v. N.K. The accused (2000) 5 SCC 30 : [2000] 2 SCR 818 ; S.K. Viswambaran v. E. Koyakunju and Others (1987)

2 SCC 109 ; Manish Dixit and Others v. State of Rajasthan (2001) 1 SCC 596 : [2000] 4 Suppl. SCR 74 ; Chintamani Malviya v. High Court of Madhya Pradesh (2018) 6 SCC 151 – referred to.