PARKASH CHAND versus STATE OF HIMACHAL PRADESH on 12 February 2019

[2019] 3 S.C.R. 953

PARKASH CHAND

v.

STATE OF HIMACHAL PRADESH

(Criminal Appeal No. 2393 of 2010)

FEBRUARY 12, 2019

[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL ANDK. M. JOSEPH, JJ.]

Penal Code, 1860 – ss. 376 and 506 – Rape – PW.2-prosecutrix alleged that appellant caught hold of her on a commonpath of villages and dragged her in the bushes – She raised hueand cry but nobody was there at the place of occurrence – Appellantcommitted rape on her – Consequent to which, prosecutrix gotpregnant – After 7 months of alleged commission of offence, FIRwas lodged – Trial Court convicted appellant u/ss. 376 and 506IPC – Conviction affirmed by the High Court – On appeal, held:High Court proceeded on the basis of testimony of prosecutrix andextra- judicial confession made before PW.4 and PW.5 – There weredifferent versions of PW.3 and PW.4 about the disclosure of theincident to them by the prosecutrix – PW.4 evidence was based onprosecutrix going to him and revealing him about the incidentwhereas, PW.3 stated that after prosecutrix told her about the allegedrape, 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 safeto draw support from alleged extra-judicial confession made byappellant to PW.4 – PW.5 too gave contradictory version of factsregarding appellant coming to him and requesting compromise withprosecutrix – Insofar as prosecutrix is concenred, if she had raisedhue and cry, it was very unlikely that the labourers who used thecommon path did not hear it – Thus, unsafe to convict appellant ontestimony of the prosecutrix – Appellant entitled to the benefit ofdoubt.

Evidence – Critical examination of evidence in an appeal byspecial leave – Held: This Court has indulged in a closer look atthe evidence in these proceedings having regard to the need to doso in view of the fact that the complaint itself is lodged after 7months – If the evidence adduced by the prosecution falls short of

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Athe test of reliability and acceptability and as such it is highlyunreliable to act upon it even in an appeal by special leave, such acritical examination may not be unwarranted.

Delay/ Laches – Offence of Rape – Delay of 7 months inlodging the FIR – Held: There is admittedly a delay of 7 months inBlodging the FIR in the case of alleged rape – If the case is reportedimmediately apart from the inherent strength of the case flowingfrom genuineness attributable to such promptitude, the perceptibleadvantage would be the medical examination to which theprosecutrix can be subjected and the result of such examination ina case where there is a resistance – It is the case of the prosecutionCthat she raised hue and cry and therefore apparently she wouldhave resisted – Possibly, a medical examination may have revealedsigns of any resistance or injuries.

Allowing the appeal, the Court

DHELD: 1. There is admittedly a delay of 7 months in lodgingthe FIR in the case of alleged rape. If the case is reportedimmediately apart from the inherent strength of the case flowingfrom genuineness attributable to such promptitude, theperceptible advantage would be the medical examination to whichthe prosecutrix can be subjected and the result of suchEexamination in a case where there is a resistance. It is the caseof the prosecution that she raised hue and cry and thereforeapparently she would have resisted. Possibly,a medicalexamination may have revealed signs of any resistance or injuries.In this case the High Court has proceeded on the basisFof testimony of the prosecutrix and sought to fortify it bythe 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 onthe prosecutrix going to him on 05/07/2000 and revealing to himGabout the incident whereas PW3, the maternal aunt of theprosecutrix clearly says that after prosecutrix told her about thealleged rape and when PW4 came to visit the same village wherehis in-laws also resides at that juncture on 07/07/2000, the factumof the alleged rape was disclosed to him and he came to know onthe said basis. This is a completely different version from whatHPW4 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 andthat too from PW3 instead he sets up the case that on 05/07/2000the 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 disclosedby P.W.3 to P.W.4. This completely falsifies the version of P.W.4that on 5.7.2000 the prosecutrix went and told him about theincident including about the threat of using the knife. P.W.4 asnoted in further cross examination would state that he did nottell 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 hadwent and told him about the incident, cannot be believed. Nodoubt, P.W. 4 seeks to state that he did not tell the Police aboutwhat the prosecutrix told him thinking that prosecutrix wouldhave told the police about it. It does not appear to be safe. Insuch circumstances, it may not be safe to draw support from thealleged extra judicial confession alleged to have been made bythe 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 statesthat the appellant and also co-accused did not ask him forcompromise. This is contrary to his version that on the way backto his home on 09/07/2000 he met him and he sought for acompromise. It is also to be noted that PW 4 has stated in hiscross examination that PW5 had met him on 05/07/2000 alongwith the appellant. This is not considered by the courts below.This Court has indulged in a closer look at the evidence in theseproceedings having regard to the need to do so in view of thefact that the complaint itself is lodged after 7 months. If theevidence adduced by the prosecution falls short of the test ofreliability and acceptability and as such it is highly unreliable toact upon it even in an appeal by special leave, such a criticalexamination may not be unwarranted. [Para 16][955-E-F]

4. If this Court does not place confidence in the depositionof PW4 and PW5 then the case would depend upon the credibilityof PW2, the prosecutrix. The incident is alleged to have takenplace near a path which has been admitted by the prosecutrixand her aunt PW3 as common path. If indeed the prosecutrix ABCD

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Ahas raised hue and cry as in the case reported in 2013 (9) SCC113, it is very unlikely that the labourers who are supposed tohaunt the common path could not hear it. There is a case of theappellant that the evidence would make out a case of consensualsex. It is true that in the High Court, it is recorded that there isno case of consensual sexual intercourse as such argued but theBcase is to be decided on the basis of evidence. In thecircumstances of this case that the appellant cannot be convictedfor the offence under Section 376. It would indeed be unsafeto convict him based on the testimony of the prosecutrix.He would certainly be entitled to the benefit of doubt.C[Para 17][965-G, H; 966-A-B]

Vijayan v. State of Kerala (2008) 14 SCC 763 ; KainiRajan v. State of Kerala (2013) 9 SCC 113 : [2013]10 SCR 196 – relied on.

State of Himachal Pradesh v. Shree Kant Shekari AIRD2004 SC 4404 : [2004] 4 Suppl. SCR 380 ; TulshidasKanolkar v. State of Goa (2003) 8 SCC 590 : [2003]4 Suppl. SCR 978 ; Ganga Kumr Srivastava v. State ofBihar (2005) 6 SCC 211 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2393 of 2010.

From the Judgment and Order dated 11.05.2010 of the High CourtGof Himachal Pradesh at Shimla in Criminal Appeal No. 615 of 2002.

Rana Ranjit Singh, Vivek Kumar Singh, Ravish Singh, Advs. forthe Appellant.

Abhinav Mukerji, AAG, Siddharth Garg, Ms. Bihu Sharma, Advs.for the Respondent.H

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This is a criminal appeal by special leave challenging the orderdated 11.5.2010 passed by the High Court of Himachal Pradesh at Shimlain Criminal Appeal No.615 of 2002 affirming the conviction of the appellantunder Sections 376 and 506 of the Indian Penal Code. In short, thecase of the prosecution is as follows:

In December, 1999, the appellant committed rape upon P.W.2. Itis also the further case that P.W.2 was intimidated by the appellantand another co-accused. The appellant was charged underSections 376 and 506 IPC read with Section 34 of the IndianPenal Code and co-accused was charged under Section 506 readwith Section 34 of the IPC. The trial Court found the case infavour of the prosecution and after convicting the appellant andco-accused sentenced the appellant to simple imprisonment for 7years and a fine of Rs.10,000/- with default sentence for theoffence punishable under Section 376 of the IPC. He was alsosentenced for 2 years for the offence punishable under Section506 IPC. Both the sentences were to run concurrently. The co-accused stands acquitted by the High court whereas the appealfiled by the appellant was unsuccessful.

2. We heard learned counsel for the parties. The learned counselfor the appellant would point out that PW2, the prosecutrix was abovethe age of 16 years. Learned counsel for the appellant would seek toextricate the appellant from culpability on the score that the case of theprosecutrix is based on the FIR which is lodged 7 months after the allegedcommission of the rape. There is delay of 7 months in lodging the FIRjust as in the case ofVijayan v. State of Kerala 2008 (14)SCC 763. Inthis case also the prosecutrix was pregnant at the time of filing thecomplaint. The FIR was filed on 17.7.2000. whereas the incident is allegedto have taken place in December, 1999. He points out that it is allegedlyfiled after the prosecutrix told PW1 who accompanied her to DeputyCommissioner Office, Chamba. It is pointed out that according to theprosecution on 17.7.2000 when she came to Chamba to get medicines,she allegedly disclosed the incident to PW1 and appellant has beenimplicated thereafter. It is the case of the appellant that P.W.1 is aresident of the same village and that P.W.1 has spoken about having metthe prosecutrix even earlier but nothing about the alleged rape wasdisclosed.

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A3. Per contra, the learned counsel for the respondent-State wouldpoint out that there was ample evidence in the form of testimony of theprosecutrix. Besides that learned counsel also drew our attention to theevidence of PW4 before whom the appellant himself made an extrajudicial confession. So also attention was drawn to the evidence ofPW5.B

4. PW5 has also deposed that the appellant requested him withfolded hands for compromise as he has committed wrong with PW2, theprosecutrix and he wanted to keep her and her child as his own.

5. The first question we have to consider is the impact of delay ofCnearly 7 months in lodging the complaint with the police. The appellantseeks support mainly from the judgment of this Court in the case ofVijayan v. State of Kerala 2008 (14)SCC 763. The High court in theimpugned judgment has on the other hand relied upon the judgment ofthis Court reported inState of Himachal Pradesh v. Shree Kant ShekariAIR 2004 SC 4404. Therein, this Court has essentially relied upon theDprinciples about the impact of delay as noticed by it in the judgment ofthis Court in Tulshidas Kanolkar v. State of Goareported in 2003 (8)SCC 590 wherein rape was committed on a girl whose mental abilitywas undeveloped. This is what the court had to say about the fact ofdelay.E

“……………In any event, delay per se is not a mitigatingcircumstance for the accused when accusations of rape areinvolved. Delay in lodging the first information report cannot beused as a ritualistic formula for discarding prosecution case anddoubting its authenticity. It only puts the court on guard to searchFfor and consider if any explanation has been offered for the delay.Once it is offered, the Court is to only see whether it is satisfactoryor not. In a case if the prosecution fails to satisfactorily explainthe delay and there is possibility of embellishment or exaggerationin the prosecution version on account of such delay, it is a relevantfactor. On the other hand, satisfactory explanation of the delay isGweighty enough to reject the plea of false implication orvulnerability of prosecution case. As the factual scenario shows,the victim was totally unaware of the catastrophe which hadbefallen her. That being so, the mere delay in lodging of the firstinformation report does not in any way render prosecution versionbrittle.”H

6. In Vijayan case(supra) the prosecutrix who was aged about17 years was the neighbor of the accused. In her testimony theprosecutrix set up the case that accused has raped her when no one elsewas there in the house and she was raped in the house. The accused-appellant was alleged to have been told that she need not worry as hewill marry her. She did not give any complaint either to her parents andpolice in view of the promise. She became pregnant and while she wascarrying a child of 7 months, she requested the accused to marry her.The accused declined. Thereafter a complaint was filed after 7 months.On these facts this court noted that no complaint or grievance was madeeither to the police or the parents thereto. The explanation for delay inlodging the FIR was noted namely that the accused promised to marryher and therefore the FIR was not filed. The Court held as follows:

“…………In cases where the sole testimony of the prosecutrixis available, it is very dangerous to convict the accused, speciallywhen the prosecutrix could venture to wait for seven months forfiling the FIR for rape. This leaves the accused totally defenceless.Had the prosecutrix lodged the complaint soon after the incident,there would have been some supporting evidence like the medicalreport or any other injury on the body of the prosecutrix so as toshow the sign of rape. If the prosecutrix has willingly submittedherself to sexual intercourse and waited for seven months forfiling the FIR it will be very hazardous to convict on such sole oraltestimony. Moreover, no DNA test was conducted to find outwhether the child was born out of the said incident of rape andthat the appellant-accused was responsible for the said child. Inthe face of lack of any other evidence, it is unsafe to convict theaccused.”

7. In the case of Kaini Rajan v. State of Keralareported in 2013(9) SCC 113, on 17.9.1997 at about 8.30 a.m. it was alleged the prosecutrixwas raped at a site which was by the side of a public road. It was thecase of the prosecutrix that she tried to make hue and cry but wassilenced by the accused by stating that he would marry her. Even afterthis incident he had sexual intercourse on more than one occasion. Theprosecutrix became pregnant, gave birth to a child and accused did notkeep his promise to marry her. It is thereafter that on 26.7.1998 nearly10 months after the alleged rape that a case was registered. This Courtreferred the Vijayan’s case(supra), took note of the place being on the AB

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Aside of a public road, the aspect of delayed filing of the report and alsothe behavior of the parents of the prosecutrix in not approaching thefamily members of the accused for marrying the prosecutrix and insteadlodging the report. The Court also found that having regard to the site, ifthe prosecutrix has made any resistance or made hue and cry it wouldhave attracted large number of people from the locality. The appealBfiled by the accused was allowed.

8. It is in the background of the aforesaid principle that we mustexamine the question. P.W. 2 prosecutrix has undoubtedly stated thather parents had died and she was left without any brother and sister.She was brought up by her uncle and aunt. She studied upto 9[th] class.COn 5.12.1999 while she was coming back at about 5-6 p.m. the appellantwho is also the resident of the same village and who is related to her asbrother in village relation caught hold of her and started dragging hertowards the lonely place in the bushes and committed rape. She raisedhue and cry but nobody was there at the place of occurrence. TheDappellant showed her knife and threatened her to do away with her lifein case she disclose the incident to anybody. She stated that she was sofrightened and ashamed due to which she did not disclose the incident toanyone. After staying with her maternal grandmother when she cameback she knew about becoming pregnant. Her aunt enquired about herwomb looking bigger and she told her about the incident. Aunt sent herEto the home of her maternal grandmother. The incident came to bedisclosed by her aunt to P.W.4 who is also maternal uncle of theprosecutrix. A ‘baradari’ was called. She was also present. Theappellant though called, did not appear. On 9.7.2000, persons including P.W.4 and appellant came there and the latter told her that he is preparedFto take her and child to accompany him and that he would get her andher child recorded as his wife and child. She accompanied the appellantby making to understand by matrimonial uncle P.W.4. She stayed therefor one day and two nights. It is thereafter the accused refused to keepher at his house and the co-accused also threatened that they will not keep her in the house and nor would get the child recorded. In short, sheGwas turned out. She stated that she requested the accused not to turnher out as she was pregnant. On 17.7.2000 when she came to Chambafor getting the medicines, she met P.W.1 the person whom she describedas brother and she told him the whole incident. She also asked to get thematter reported at the police. It is thereafter that the complaint wasHlodged. She states in her cross examination that it is correct that the

path is a common village path and people used to pass through the saidpath. She stated there was none at that time. She would say that it iscorrect that the labourers used to go their house after finishing theirlabour work. She made cries at the time when the accused caught holdof her by showing a knife.She stated that she had gone to the house ofappellant of her own free will. She volunteered to say that the accused-appellant had giving assurance that she is his wife and was carrying hischild in her womb. She disclosed that she told her grandmother aboutthe rape and that she was turned out by the uncle. The grandmother(Nani) told her to go to the house of the accused-appellant. It was outof fear that she did not disclose to anyone. She states that P.W.1 mether for the first time at Chamba and the incident was also disclosed tohim for the first time. She admits knowing the accused since her childhoodbut denied having either played with him or studied with him. She statesthat when she went to the house of the appellant, she slept with himduring the night. She stated that she had told the petition writer that theappellant took her forcibly at the point of knife and threatened to kill herwith the same. She was confronted with the petition wherein it was notso recorded. In the petition to the police also it is her statement she hasstated so but it was found not recorded.

9. We may also notice also the deposition of P.W.1 to whomaccording to her, she disclosed for the first time in July, 2000 and withwhom she lodged a complaint. He stated that it was disclosed by her tohim that the appellant committed rape when she was coming back to herhouse after purchasing medicines. He admits that the uncle of theprosecutrix is alive and he has not lodged any complaint. He admits thatvillage Dugli to which place prosecutrix had gone in December, 1999 topurchase article is scattered within a radius of one kilometer. He wouldsay that he got drafted in Exhibit P.A. that prosecutrix had disclosed tohim that the appellant had threatened her with knife/dagger in case shedisclosed the incident to anyone. He stated that this fact was not gotdrafted in Exhibit P.A.

10. P.W.3 is not only married to uncle of the prosecutrix but isalso the elder sister of her own mother. She has inter alia stated thatwhen PW.2 after staying at her maternal grandmother’s house for 3months and thereafter after coming back after 21/22 days, on noticingthat her womb was getting bigger and on her being questioned about it,she disclosed what happened in December, 1999 namely, the rape ABC

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Acommitted by the appellant. She also stated that out of fear as well asfeeling ashamed this was not disclosed to anyone. Again, PW 2 wassent back to her maternal grandmother’s house who is none other thanthe mother of PW 3. At that time PW 2 was six months pregnant. PW3 would further state that Rattan Chand (who was in fact examined asPW 4) who is maternal uncle of the prosecutrix and who is having inBlaws in her village visited her house. She claims to have thereupondisclosed about the rape to him.The prosecutrix was thereupon calledback from her maternal grandmother’s house. A baradari was called.The appellant did not attend. Thereafter she speaks about her comingto know that prosecutrix went with the appellant and stayed with himCand was turned out later on. In Cross Examination she would state thatthe prosecutrix was carrying pregnancy of 6 months when the baradarimeeting was called. She disclaims knowledge of the outcome in themeeting. She admits that the stomach would start bulging out in 4 monthspregnancy. In further cross she would state that prosecutrix continued for 15 days at her house after the disclosure about carrying the child ofDthe appellant and thereafter she went to maternal grandmother’s house.She admits that she and her husband (namely, uncle of prosecutrix) didnot lodge any report either with the Pradhan or the Police. Theprosecutrix was brought up by them from the age of about 2 ½ years. Inregard to the path she denied that there is only path in between BhogiEand Dugli village. She states there are two to three other paths. She,however, admits that this path is a common path.

11. PW 4 Rattan Chand however, has a different version abouthow he came to know about the matter. He would state that prosecutrixis related to him. On 5.7.2000 she came to his house at village Panjah.FOn inquiry about her womb being bigger than normal she told him aboutthe forcible sexual intercourse committed by the appellant in December,1999 and about her being threatened with the help of a knife not todisclose it to anyone. He further states two days thereafter, namely on,7.7.2000 he came to the house of his in-laws in village Bhoga and this fact was disclosed to the Panchayat member Bhola Ram who suggestedGa ‘Baradari’ meeting. In the said baradari meeting Loki Nand, KishanChand, Balo Ram and the prosecutrix was also there. As the appellantand his family members did not attend the meeting, the meeting couldnot take place. He further states that it was subsequently decided toreport to the matter to the Police. Two days thereafter, namely, onH9.7.2000 at about 9/10 p.m., appellant and, PW 5 came to his father-in-

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law. They wanted to have special talk with him. It is thereupon that hesays that the appellant requested him with folded hands that since hewas the maternal uncle of the prosecutrix that he has committed wrongwith her by committing forcible sexual intercourse due to which shebecame pregnant and the foetus in her womb belongs to him. He wantedto take the prosecutrix to his house and wanted to keep her as his wifeand also unborn child and to get them recorded in the Panchayat Registerif they were ready to send her as his wife. Under compellingcircumstances and having no other way it was decided to send theprosecutrix as his wife. The prosecutrix was not ready to go as his wifebut she was made to understand and then she went to the house of theaccused-appellant. She was taken on the same night. She stayed forone day and two nights. Then she was turned out. In cross examinationhe states that he did not report the matter to any authority when theprosecutrix disclosed the incident to him. After ‘baradari’ meeting theprosecutrix started living with her Nani. He further states that theaccused-appellant visited his house on 5.7.2000 and at that time SahibSingh (PW 5), Khelku Devi and the prosecutrix was also present. Theappellant was accompanied by PW 5.

12. He admits that his statement was recorded by the police. Hestates that he did not state to the police that the prosecutrix told him thatthe appellant had met her on the way and that he had committed forciblesexual intercourse with her.

He further states as follows:

“It is correct that I have not stated the aforesaid facts to thePolice as it was not disclosed to me by the prosecutrix”.

No doubt, thereafter it is found that he states as follows:

“I have not stated to the Police that the Prosecutrix told me thatthe appellant took her to the bushes on the point of knife on thepretext that the prosecutrix had already stated the said fact to thepolice”.

13. In his deposition P.W.5 would state that on 9.7.2000 at about8.00 p.m. while he was coming back, the appellant and the co-accusedmet him. The appellant requested him with folded hands by taking himinto a side and told him that compromise be got effected with theprosecutrix because he has committed wrong with her and the child inher womb is his offspring. However, in cross examination he wouldstate as follows:

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A“Witness Rattan Chand told me that the accused person want toeffect compromise with the prosecutrix. Accused Prakash Chandhad no talk with me regarding the aforesaid fact. Similarly, notalk took place with me and accused Chakknu on the said fact. Itis correct that Rattan Chand told me about the compromise bythe accused person with the prosecutrix.”B

14. There is admittedly a delay of 7 months in lodging the FIR inthe case of alleged rape. If the case is reported immediately apart fromthe inherent strength of the case flowing from genuineness attributableto such promptitude, the perceptible advantage would be the medicalexamination to which the prosecutrix can be subjected and the result ofCsuch examination in a case where there is a resistance. It is the case ofthe prosecution that she raised hue and cry and therefore apparently shewould have resisted. Possibly,a medical examination may have revealedsigns of any resistance or injuries. In this case the High Court hasproceeded on the basis of testimony of the prosecutrix and sought toDfortify it by the extra judicial confession made before PW4 and PW5.

15. As far as PW 4 is concerned, his evidence is based on theprosecutrix going to him on 05/07/2000 and revealing to him what hadhappened allegedly in December 1999 whereas PW3, the maternal auntof the prosecutrix clearly says that after prosecutrix told her about theEalleged 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 allegedrape was disclosed to him and he came to know on the said basis. Thisis a completely different version from what PW4 has spoken. If PW3 isto be believed, then knowledge about the alleged incident was gained byP.W.4 only on 07/07/2000 and that too from PW3 instead he sets up theFcase that on 05/07/2000 the prosecutrix went to his house and told himabout the same. In fact, even the prosecutrix in her version has no suchcase. Rather, the prosecutrix would say that the incident was disclosedby P.W.3 to P.W.4. This completely falsifies the version of P.W.4 thaton 5.7.2000 the prosecutrix went and told him about the incident includingGabout the threat of using the knife. P.W.4 as we have noted in furthercross examination would state that he did not tell the police on the basisthat she had not told him about it. This would again show that version ofP.W.4 that prosecutrix had went and told him about the incident, cannotbe believed. No doubt, P.W. 4 seeks to state that he did not tell thePolice about what the prosecutrix told him thinking that prosecutrix would H

have told the police about it. It does not appear to be safe. In suchcircumstances, it may not be safe to draw support from the allegedextra judicial confession alleged to have been made by the appellant tohim.

16. As far as P.W.5 who again has been believed by the courts,we would notice that in the cross examination he categorically statesthat 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 benoted that PW 4 has stated in his cross examination that PW5 had methim on 05/07/2000 along with the appellant. This is not considered bythe courts below. We have indulged in a closer look at the evidence inthese proceedings having regard to the need to do so in view of the factthat the complaint itself is lodged after 7 months. If the evidence adducedby the prosecution falls short of the test of reliability and acceptabilityand as such it is highly unreliable to act upon it even in an appeal byspecial leave, such a critical examination may not be unwarranted. Seedecision of this Court in Ganga Kumr Srivastava v. State of Bihar2005 (6) SCC 211. Also when vital evidence is not appreciated, thisCourt can interfere. Furthermore, we notice that the trial court, in fact,proceeded on the basis that the prosecutrix was not a minor. The HighCourt finds on evidence that the prosecutrix was not a minor. Moreover,we notice that the High court has found as follows:

“16. ………On 18-8-2000, the prosecutrix was again brought andwas examined by him and the pregnancy of approximately 36weeks was detected. There is nothing in the MLC that theprosecutrix was habitual of sexual intercourse……”.

However, we find in Exhibit PE which is the MLC dated 18/08/2000, it is clearly stated under the head ‘opinion’ as follows:

“The pt. is used to habitual sexual intercourse”

17. If we do not place confidence in the deposition of PW4 andPW5 then the case would depend upon the credibility of PW2, theprosecutrix. The incident is alleged to have taken place near a pathwhich has been admitted by the prosecutrix and her aunt PW3 as commonpath. If indeed the prosecutrix has raised hue and cry as in the casereported in 2013 (9) SCC 113, it is very unlikely that the labourers whoare supposed to haunt the common path could not hear it. There is a A

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966 SUPREME COURT REPORTS [2019] 3 S.C.R.

Acase of the appellant that the evidence would make out a case ofconsensual sex. It is true that in the High Court, it is recorded that thereis no case of consensual sexual intercourse as such argued but we haveto decide the case on the basis of evidence. We would think in thecircumstances of this case that the appellant cannot be convicted for theoffence under Section 376. It would indeed be unsafe to convict himBbased on the testimony of the prosecutrix. He would certainly be entitledto the benefit of doubt which is created by the very circumstances whichwe have referred.

18. As far as the charge against the appellant under Section 376IPC is concerned, it reads as follows:C

“That in the month of December 1999 at about 5/6 PM at villageBhoga, you committed rape upon Kumari ……………at a placeone kilometer away from Dugli towards Bhoga and therebycommitted an offence punishable under Section 376 IPC and withinmy cognizance;D

And I hereby direct you accused be tried on the said charge bythis court.”

As far as the charge under Section 506 read with 34 IPC isconcerned, it reads as follows:E“That on 10.7.2000 at village Bhoga, you alongwith your co-accused in furtherance of common intention, criminally intimidatedKumari ……….to do away with her life and thereby committedan offence punishable under Section 506 IPC read with Section34 IPC and within my cognizance;FAnd I hereby direct you accused be tried on the said charge bythis Court.”

19. The trial Court, in fact, has proceeded to rely upon the testimonyof prosecutrix about the appellant threatening her that in case she disclosesthe incident to anyone she will be killed by the accused. This apparentlyGis related to the incident in December, 1999. In fact, the appellant wasspecifically charged with criminal intimidation allegedly done on 10/07/2000. The appellant was so charged in alleged furtherance of commonintention along with co-accused. The trial Court has also proceeded toconvict the co-accused relying on the evidence of the prosecutrix. TheHigh Court has acquitted the co-accused of the charge of criminalH

intimidation. We have noted that there is no specific charge even framedagainst the appellant under Section 506 in regard to the alleged incidentwhich took place in December, 1999 and the charge in fact relates onlyto the acts alleged to have been committed on 10/07/2000. Apart fromthe fact that there is no specific charge against the appellant in regard towhat happened in December, 1999, we are inclined to think that theappellant could not be convicted under Section 506 having regard to thecircumstances which we have already discussed hereinbefore.

20. In such circumstances, the appeal is allowed. We set asidethe order of conviction and sentence of the appellant by the courts below.As the appellant is on bail, the bail bonds of the appellant standsdischarged.

Ankit Gyan

Appeal allowed.

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