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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.65 OF 2012

Deepak            Appellant(s)

VERSUS

State of Haryana   Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. This  criminal  appeal  is  filed  by  the  accused  

against  the  final  order/judgment  dated  15.03.2010  

passed by the High Court of Punjab and Haryana at  

Chandigarh  in  Criminal  Appeal  No.2109-SB  of  2009  

which  arises  out  of  judgment/order  dated  

18.08.2009/20.08.2009  passed  by  the  Additional  

Sessions Judge, Panipat in Misc. Sessions Case No. 31  

of 2007.

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2. By  impugned  judgment/order,  the  High  Court  

upheld the conviction and sentence of the appellant  

awarded  by  the  Sessions  Court  for  the  offence  

punishable  under  Section  376  of  the  Indian  Penal  

Code,  1860  (hereinafter  referred  to  as  “IPC”)  and  

sentenced him to undergo rigorous imprisonment for 7  

years  and  a  fine  of  Rs.5000/-  and  in  default  of  

payment of fine to undergo rigorous imprisonment for  

another six months.

3. In order to appreciate the issue involved in the  

appeal, few relevant facts need mention infra,

4. The  prosecutrix  (name  withheld  by  us)  was  a  

young  girl  aged  around  16  years  3  months  at  the  

relevant time.  She had no educational background.  

She was the resident of Vidya Nand Colony, Panipat  

and  was  living  with  her  parents  and  two  younger  

sisters  and  three  brothers.  Her  father,  Abid  was  a  

labourer in one factory and her mother was running a  

small grocery shop in their house.  The  appellant-

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accused, a young boy in his twenties was also residing  

with  his  family  as  their  neighbour.   He  was  also  

running his own grocery shop in his house.  

5. On 02.04.2007, Sub Inspector (SI)-Prithvi Raj of  

Police  Station  Chandni  Bagh  received  information  

about the sexual assault on the prosecutrix, who was  

taken to the General Hospital, Panipat.  After receipt  

of the information, SI rushed to the General Hospital,  

Panipat to find out the details.  He was told that the  

prosecutrix was not admitted to the hospital but was  

got examined by the doctors.  He then collected parcel  

of  slides,  swab  of  the  prosecutrix,  samples  of  tests  

done on the prosecutrix and a copy of the MLR and  

then went to the prosecutrix's residence and met her  

mother, Ruksana on 04.04.2007.  

6. Ruksana-the mother of prosecutrix then gave her  

statement saying that she has three daughters - the  

eldest  being  the  prosecutrix  aged around 14 years.  

Her  husband was  working  as  labourer  and she was  

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running  a  small  grocery  shop.  She  said  that  the  

appellant (accused), their neighbour, entered in their  

house a few days back in night and when she saw him,  

he  slipped  away.  She  had  complained  about  this  

behavior of appellant to his parents but his parents did  

not pay any heed to her complaint.  She then said that  

after some days, in their absence, Sajida-wife of Salim,  

who  was  living  as  their  tenant  in  the  same  house,  

came to their  house and enticed the prosecutrix on  

the pretext  that  she should talk  with  the appellant-

accused regarding her love otherwise he would end  

his  life  by  consuming  poison.    Ruksana  further  

narrated that a fortnight back, on hearing the noise,  

she woke up and saw that her daughter was coming  

down  from  the  staircase.   On  being  asked,  the  

prosecutrix did not give any response and avoided to  

give answer.  However, later on, she told Ruksana (her  

mother) that the appellant had raped her in the night  

forcefully without her consent and threatened her not  

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to disclose this incident to her parents or to anyone  

else she will have to face the dire consequences.  

7. This  disclosure  made  by  Ruksana  led  to  

registration of FIR No.  144 dated 04.04.2007 in the  

Police  Station  Chandni  Bagh,  Panipat  against  the  

appellant-accused  and  Sajida,  who  as  mentioned  

above, was living as tenant of the prosecutrix's father  

in  the next  room.  The statement  of  the  prosecutrix  

under Section 164 of the Code of Criminal Procedure,  

1973  (hereinafter  referred  to  as  “the  Code”)  was  

recorded. Her ossification test was also got done. The  

statements  of  other  witnesses  were  recorded.  The  

appellant and Sajida were arrested. The appellant was  

medically  examined.   After  completing  the  

investigation and collecting the necessary evidence, a  

charge-sheet  was  filed  against  the  appellant  and  

Sajida under Sections 376/506/120-B of IPC.  

8. On their appearance, the accused were supplied  

with all the documents relied on by the prosecution.  

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The case was then committed to the Court of Sessions  

where  the  court  framed the  charges.  So  far  as  the  

appellant  and  Sajida  were  concerned,  both  were  

charged for the offence punishable under Section 120-

B IPC. So far as the appellant was concerned, he was  

also charged for the offence punishable under Section  

376  IPC.   Both  the  accused  pleaded not  guilty  and  

claimed trial.  

9. With a view to connect the appellant and Sajida  

with  the  crime,  the  prosecution  examined  14  

witnesses  namely,  Ruksana,  the  Complainant(PW-1),  

the prosecutrix  (PW-2),  Dr.  Rahul  Diwan (PW-3),  Dr.  

Shashi  Garg  (PW-4),  Dr.  Nidhi  Kharab  (PW-5),  Dr.  

Ashwani Kumar (PW-6), Ghansham Dass, ASI (PW-7),  

Rajbir Singh, ASI (PW-8), Constable Jagbir Singh (PW-

9),  Head  Constable  Dharam  Pal  (PW-10),  Constable  

Joginder (PW-11), Head Constable Dharampal (PW-12),  

Prithvi  Raj,  Inspector  (PW-13)  and  ASI  Rajbir  Singh  

(PW-14)  whereas  the  defence  examined  four  

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witnesses,  namely,  Hawa  Singh,  Clerk,  Death  and  

Birth,  Municipal  Council,  Panipat  as  DW-1,  Ashok  

Kumar  Bathla,  Senior  Supervisor,  BSNL,  Panipat  as  

DW-2, Salim as DW-3 and Head Constable Kuleep as  

DW-4.       

10. The  Sessions  Judge  by  judgment/order  dated  

18.08.2009/20.08.2009  held  that  no  case  of  

conspiracy  was  proved  against  the  appellant  and  

Sajida of any nature and since involvement of Sajida  

was not proved in this case, therefore,   both of them  

were acquitted of the charge of conspiracy.  So far as  

the appellant-accused (Deepak) was concerned, it was  

held  that  the  prosecution  was  able  to  prove  the  

commission of offence of rape on the prosecutrix by  

the appellant and accordingly he was convicted for the  

offence  punishable  under  Section  376  IPC  and  was  

sentenced to undergo 7 years’ RI with a fine amount  

of Rs.5000/- and in default to undergo further RI for 6  

months.    

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11. Feeling  aggrieved  by  the  said  order/judgment,  

the appellant filed appeal before the High Court.  By  

impugned judgment/order,  the High Court  dismissed  

the  appeal  and upheld  the  conviction and sentence  

awarded to the appellant by the Sessions Court. It is  

against this judgment/order, the accused-Deepak has  

filed this appeal by way of special leave.

12. Learned Counsel for the appellant mainly urged  

three submissions.  In  the  first  place,  he  urged  that  

since there was inordinate delay in filing the FIR of the  

incident  of  alleged  rape  by  the  victim  or/and  her  

family  members,  the  conviction  of  the  appellant  

becomes  unsustainable  in  law  and  was,  therefore,  

liable  to  be  set  aside.  Secondly,  he  made  his  

submission  based  on  the  age  of  the  prosecutrix.  

According to the learned counsel, since the age of the  

prosecutrix  was  above sixteen,  it  should  have been  

held to be a case of consent given voluntarily by the  

prosecutrix rendering the appellant's conviction bad in  

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law and lastly, the ingredients of rape were not proved  

against  the  appellant,  no  case  of  rape  within  the  

meaning  of  Section  376 of  IPC  was  made out.  It  is  

essentially  these  three  submissions,  which  were  

elaborated by the learned counsel in his arguments by  

referring to the contents of the FIR and the evidence  

on record.

13. In  contra,  learned  counsel  for  the  respondent-

State supported the reasoning and the conclusion of  

the courts below and contended that the appeal being  

wholly devoid of merit, the same deserves dismissal.

14. Having heard the learned counsel for the parties  

and on perusal of the record of the case, we find no  

merit in any of the submissions of the learned counsel  

for the appellant.

15. Coming  to  the  first  submission  relating  to  the  

lodging of the FIR for the commission of the offence is  

concerned,  in  our  considered opinion,  there  was  no  

delay in the lodging of the FIR either and if at all there  

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was some delay, the same has not only been properly  

explained by the prosecution but also considering the  

facts and circumstances of the case, it was natural.  

16. The  Courts  cannot  overlook  the  fact  that  in  

sexual offences and, in particular, the offence of rape  

and that  too on a  young illiterate girl,  the delay in  

lodging the FIR can occur due to various reasons. One  

of the reasons is the reluctance of the prosecutrix or  

her family members to go to the police station and to  

make a complaint about the incident, which concerns  

the reputation of the prosecutrix and the honour of the  

entire  family.  In  such  cases,  after  giving  very  cool  

thought and considering all pros and cons arising out  

of  an  unfortunate  incident,  a  complaint  of  sexual  

offence is generally lodged either by victim or by any  

member  of  her  family.   Indeed,  this  has  been  the  

consistent  view  of  this  Court  as  has  been  held  in  

State of Punjab vs. Gurmit Singh & Ors.[ (1996) 2  

SCC 384)].

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17. Keeping  this  well  settled  principle  in  mind,  we  

find  that  the  FIR  in  this  case  was  lodged  on  

04.04.2007  when  the  prosecutrix  disclosed  to  her  

mother  of  the  incident  first  time  as  to  what  had  

happened with her hardly two weeks before the date  

of  disclosure  and  the  mother,  in  turn,  immediately  

made a complaint to the police station and disclosed  

to the SI, who visited her place on coming to know of  

the incident. The late disclosure of the offence by the  

prosecutrix  was  also  well  justified  by  her  in  her  

statement  recorded  under  Section  164  of  the  Code  

and also  in  her  evidence wherein she said  that  the  

appellant  had  taken  her  photographs  and  had  also  

recorded her talks with him on mobile. The accused  

was, as per her version, threatening her from raising  

any kind of alarm with the use of such evidence in his  

possession.  

18. The  conduct  of  the  prosecutrix,  in  this  regard,  

therefore, appears to us to be most natural.  She did  

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not  inform the  incident  immediately  to  the  parents  

and waited for two weeks to eventually disclose to her  

mother.  It was for the reason that the appellant was  

all  along  threatening  the  prosecutrix  of  the  dire  

consequences with the use of the evidence, which he  

was having with him against her.

19. We  do  not  agree  with  the  submission  of  the  

learned counsel for the appellant when he contended  

that since no efforts were made by the prosecution to  

file the photographs and the recorded conversation of  

the prosecutrix with the appellant and, therefore, the  

prosecutrix’s  version should not be relied on.  

20. We  cannot  overlook  the  situation  in  which  a  

young illiterate girl, who had just crossed her 16th year  

and who was subjected to sexual violence against her  

will would immediately react. Again, in our considered  

view, if the Investigating Officer did not conduct the  

investigation properly in not being able to seize the  

photographs and recorded conversation then it could  

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not have been made a ground to discredit the sworn  

testimony  of  the  prosecutrix,  which  was  otherwise  

found to be trustworthy and consistent.

21. No one can dispute that the prosecutrix had no  

control  over  the  investigating  agency  and  nor  the  

lapse on the part of the investigating agency could in  

any manner affect the creditability of the statement of  

the prosecutrix.  

22. In  our  considered  opinion,  the  courts  below,  

therefore,  rightly  placed  reliance  on  the  sworn  

testimony of the prosecutrix on this issue and came to  

a just and proper conclusion that having regard to the  

facts and circumstances of the case coupled with the  

explanation  given  by  the  prosecutrix,  there  was  no  

delay in  lodging the FIR by her  mother  and even if  

there was some delay then, in our considered view,  

the same was satisfactorily explained.

23. This takes us to the next two submissions of the  

learned counsel  for  the appellant.  The courts  below  

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have held that the age of the prosecutrix on the date  

of commission of the offence was around 16 years and  

3 months. Assuming this finding to be proper, we are  

of the considered opinion that these submissions have  

no  merit  in  the  light  of  the  statutory  presumption  

contained in Section 114-A of the Evidence Act, 1872  

against  the  appellant,  which  in  our  opinion  remain  

unrebutted at the instance of the appellant.

24. Section  114-A  of  the  Indian  Evidence  Act  was  

brought on statute book with effect from 25.12.1983  

by the Criminal Law (Amendment) Act, 1983.  It reads  

as under:  

“114-A.  Presumption  as  to  absence  of  consent in certain prosecutions for rape –  In a prosecution for rape under clause (a)  or clause (b) or clause (c) or clause (d) or  clause (e) or clause (g) of sub-section (2)  of Section 376 of the Indian Penal Code  (45 of 1860), where sexual intercourse by  the accused is proved and the question is  whether it was without the consent of the  woman alleged to  have been raped and  she  states  in  her  evidence  before  the  Court that she did not consent, the Court  shall presume that she did not consent.”

25. In order to enable the court to draw presumption  

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as contained in Section 114-A against the accused, it  

is necessary to first prove the commission of sexual  

intercourse  by  the  accused  on  the  prosecutrix  and  

second, it should be proved that it was done without  

the consent of the prosecutrix.  Once the prosecutrix  

states in her evidence that she did not consent to act  

of  sexual  intercourse  done  by  the  accused  on  her  

which, as per her statement,  was committed by the  

accused against her will and the accused failed to give  

any satisfactory explanation in his defence evidence  

on this  issue,  the court  will  be entitled to draw the  

presumption  under  Section  114-A  of  the  Indian  

Evidence  Act  against  the  accused  holding  that  he  

committed  the  act  of  sexual  intercourse  on  the  

prosecutrix against her will and without her consent.  

The question as to whether the sexual intercourse was  

done with or without consent being a question of fact  

has to be proved by the evidence in every case before  

invoking  the  rigour  of  Section  114-A  of  the  Indian  

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Evidence Act.

26. Coming now to the case in hand, we find that the  

prosecutrix, in her sworn testimony, in clear terms has  

said that she did not give her consent for commission  

of the act to the appellant and that he committed the  

act  of  sexual  violence  on  her  against  her  will.  The  

appellant  was  not  able  to  give  any  satisfactory  

explanation in his statement recorded under Section  

313  of  the  Code  nor  was  he  able  to  adduce  any  

defence evidence to rebut the presumption contained  

in  Section  114-A  of  the  Indian  Evidence  Act,  1872  

against  him.   So  far  as  commission  of  sexual  

intercourse is concerned, it is proved with the medical  

evidence that it was performed by the appellant with  

the prosecutrix.   

27. We are alive to the law laid down by this Court  

wherein  it  is  ruled  that  in  a  case  of  rape,  no  self-  

respecting woman would ever come forward in a court  

just  to  make  a  humiliating  statement  against  her  

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honour such as is involved in the commission of rape  

on her. The testimony of the prosecutrix in such cases  

is vital and unless there are compelling reasons, which  

necessitate looking for corroboration of her statement  

or where there are compelling reasons for rejecting of  

her testimony, there is no justification on the part of  

the court to reject her testimony.

28. In  the  instant  case,  our  careful  analysis  of  the  

statement  of  the  prosecutrix  has  created  an  

impression  on  our  minds  that  she is  a  reliable  and  

truthful witness and her testimony suffers no infirmity  

or  blemish  whatsoever.   That  apart,  as  observed  

supra,  even  the  medical  evidence  supports  the  

commission of sexual violence on her and we need not  

elaborate  on  this  issue  any  more  in  the  light  of  

concurrent  finding  of  the  courts  below having  been  

recorded against the appellant holding in clear terms  

that  sign  of  commission  of  rape  on  her  by  the  

appellant stood proved by medical  evidence beyond  

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reasonable doubt.  Indeed, even the appellant had not  

disputed  the  factum  of  commission  of  sexual  

intercourse  by  him  on  the  prosecutrix  because  as  

taken note of, the appellant's only defence was that  

since  the  prosecutrix  had  consented  to  the  

commission of the sexual act, no offence of rape was  

made out against him. This argument we have already  

rejected.

29. In  the  light  of  this,  we  have  no  hesitation  in  

invoking  the  statutory  presumption  contemplated  

under Section 114-A of the Evidence Act against the  

appellant rendering him liable to suffer the conviction  

under Section 376 of IPC  for commission of offence of  

rape on the prosecutrix.

30. In the light of foregoing discussion, we uphold the  

finding of commission of rape by the appellant on the  

prosecutrix, which in our view, was rightly recorded by  

the two courts below.

31. The last  submission  of  learned  counsel  for  the  

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appellant  was that  looking to  the young age of  the  

appellant and further he being the first offender and  

lastly, the fact that he has already undergone 3 years  

1 month in jail,  this Court should take some lenient  

view in the matter of awarding of the sentence to him.  

32. We find no merit in this submission for the simple  

reason that the appellant has been awarded minimum  

mandatory sentence of 7 years.  In other words, once  

the offence under Section 376 IPC is proved then the  

minimum sentence is 7 years,  which may extend to  

imprisonment  for  life  and  the  fine.   Therefore,  the  

appellant should feel fortunate that he was awarded  

only 7 years’ sentence else it could have been even  

more.

33. Since  the  State  has  not  filed  any  appeal  for  

enhancement of sentence,  we need not go into this  

question  except  to  reject  the  submissions  urged by  

the  learned  counsel  for  the  appellant  being  totally  

devoid of substance.

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34. Learned  counsel  for  the  appellant  had  placed  

reliance  on  the  decision  of  this  Court  in  Uday  vs.  

State of Karnataka [(2003) 4 SCC 46] in support of  

his submissions. We have gone through the facts of  

this case and find that in the light of what we have  

held on appreciation of the evidence of this case, the  

decision relied upon may not help the appellant. In our  

opinion, it is distinguishable on facts.

35. In  the light  of  foregoing discussion,  we find no  

merit  in  this  appeal,  which  fails  and  is  accordingly  

dismissed. Since the appellant is on bail by the order  

passed by  this  Court  on  06.01.2012,  his  bail  bonds  

stand  cancelled  and  he  is  directed  to  surrender  

forthwith  to  serve  out  the  remaining  period  of  his  

sentence.

                ..…………….….……...................................J. [FAKKIR MOHAMED IBRAHIM KALIFULLA]  

                         ..………..………………..................................J.

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[ABHAY MANOHAR SAPRE]

New Delhi; March 10, 2015.

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