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REPORTABLE     IN THE SUPREME COURT OF INDIA

    CRIMINAL APPELLATE JURISDICTION       CRIMINAL APPEAL NO. 1252   Of 2011

  [Arising out of S.L.P. (Crl.) No.8021 of 2009]   

 Krishan Kumar Malik         ...Appellant  Versus

   State of Haryana    ...Respondent  J U D G M E N T

    Deepak Verma, J.  1.Leave granted. 2.In all, eight accused were charged and prosecuted for  

commission of alleged offences under Section 366 and  376  (2)  (g)  of  the  Indian  Penal  Code  (hereinafter  shall  be  referred  as  ‘I.P.C.’)  for  abducting  prosecutrix and then committing  rape on her.  Trial  Court after appreciation of evidence on record found  all the eight accused guilty for commission of offence  punishable under Section 366 and in addition to it,  found present Appellant (accused) Krishan Kumar Malik,  Vijay Dua, Krishan Takkar and Krishan @ Kaka, guilty

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for commission of offences under Section 376 (2) (g)of  the IPC. The said four accused were awarded a sentence  of ten years R.I. and a fine of Rs. 2000/- each and in  default of payment of such fine to undergo further  R.I. for a period of one year. These four convicts  were sentenced further to undergo R.I. for a period of  five years for the offence punishable under Section  366 of the I.P.C  and to pay a fine of Rs. 1,000/-  each  and  in  default  of  payment  of  fine  to  further  undergo R.I. for six months. Two other accused were  convicted solely under Section 366 of the IPC, and  being ladies, leniency was shown and they were awarded  a  sentence  of  three  years  R.I.  and  a  fine  of  Rs.  1000/- each, in default whereof, to undergo R.I. for  six months each. The remaining two accused, Sandeep  and Dheeraj were convicted under Section 366 of the  IPC as well and the Trial Court sentenced them each to  5 years R.I., and a fine of Rs. 1000/- in default of  payment of which a further period of 6 months R.I.

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would come into effect.

3.Feeling  aggrieved  by  the  judgment  and  order  of  conviction  recorded  by  Additional  Sessions  Judge,  Kurukshetra in Sessions Case No.52 of 1994 decided on  24.04.1996, Criminal Appeal No. 324-SB of 1996 (filed  by two female accused) and Criminal Appeal No. 338-SB  of 1996 was filed by remaining six convicted accused  in the High Court of Punjab and Haryana at Chandigarh.  Since both the appeals arose out of the same judgment,  they were heard analogously and were disposed off by a  common impugned judgment on 27.03.2009.

4.Learned Single Judge after going through the records  and  appreciating  the  evidence  available,  partly  allowed Criminal Appeal 338-SB of 1996, qua Vijay Dua  and Krishan Kumar Takkar, and acquitted them of all  the  charges  levelled  against  them.  They  were  accordingly directed to be set at liberty. Thus out of  the initial eight, only the remaining six accused were  found  to  have  committed  offences  under  Section  366

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and, in addition, the Appellant and Krishan @ Kaka  were  also  found  to  have  committed  offences  under  Section 376 (2) (g) of the IPC, by the High Court.

5.  The present appeal has been filed by Krishan Kumar  Malik  only,  one  of  the  accused.  We  were  given  to  understand  that  on  account  of  paucity  of  funds  and  various other reasons, other convicted accused have not  preferred any appeal. However on enquiries being made  from the office, it came to our notice that both the  Special Leave Petition as well as the Review Petition  filed  by  one  of  the  two  female  accused  Hardevi  were  dismissed by this Court. Thus, in the present appeal, we  are  only  required  to  consider  whether  there  existed  sufficient,  cogent,  valid,  reliable  and  trustworthy  evidence to hold the Appellant guilty of the aforesaid  offences.  To  come  to  the  said  conclusion,  it  is  necessary  to  deal  with  the  bare  facts  of  the  prosecution.

6. Thumbnail  sketch  of  instant  case  is  as  follows:

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Prosecutrix, PW-9, was a resident of Saraswati Road,  Pehowa and was said to be aged about 17 years at the  time  of  the  commission  of  the  said  offence  by  the  

accused. She had passed her 10th class. Her father had  expired few years prior to the date of the incident.  Prosecutrix  has  two  younger  sisters  by  the  names,  Sangeeta and Ritu. Ritu was said to be aged 8 years at  the time of the incident. She alongwith her mother,  Narayani  Devi,  and  sister,  Sangeeta,  was  running  a  small book stall from their house. As she was having  vacation in her school, she alongwith her mother and  sisters, after closing the book shop, came to Darra  Khera in Thanesar to meet her maternal aunt (mausi),  about  15  days  before  the  incident.  On  the  date  of  incident, they were staying with their mausi.

7.On 23.06.1994, at about 1.00 p.m., prosecutirx went  with Ritu, her Sister to Sector 13, Kurukshetra to  meet her aunt Bimla, wife of Des Raj. While they were  talking  to  each  other  at  about  2.00  p.m.,  accused

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Hardevi  (Bua),  her  daughter  Heena,  Heena’s  husband  Sonu and Heena’s brother Dheeraj accompanied by six  boys, whose names were not known to the prosecutrix,  came to the house of her aunt, Bimla. Thereafter, they  forcibly  lifted  prosecutrix  and  put  her  in  a  blue  Maruti Van. Even though, lot of hue and cry was raised  by her as well as by her aunt, her aunt's husband,  neighbours and others but no one came forward to help  her.  She  was  then  taken  to  a  vacant  Kothi  near  a  bridge. After reaching the said Kothi, she was taken  to  a  separate  room,  and  was  subjected  to  alleged  forcible sexual intercourse by a hefty man who was  being called as Kaka and by another man, who was gitta  (short statured), having a beard. They committed the  alleged crime after removing her clothes. There were  Six more persons sitting in the said room, while two  of them committed rape on her one after the other as  stated  above.  Remaining  six  were  also  allegedly  fondling with her body parts. Some of them inserted

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finger in her anus and some of them gave tooth bite on  her cheek. The family of her so called Bua and others  were sitting in the adjoining room where the incident  had taken place.

8. Thereafter, all of them took her forcibly in the same  Maruti Van to Radaur to the in law’s house of her Bua,  Hardevi. All the six boys left her there. Thereafter,  her Bua after cutting prosecutrix's hair gave her a  beating  with  sandals.  As  soon  as  she  got  an  opportunity,  she  escaped  from  the  said  house  and  boarded the bus by which she reached Kurukshetra. At  Kurukshetra  she  met  her  mother  Narayani  and  sister  Sangeeta. She then narrated the whole incident to them  after which they went to the Police Station to lodge  an FIR. FIR was recorded at Police Station, Manesar on  24.06.1994 at 12.30 a.m. In the said FIR, the same  story was mentioned by the prosecutrix stating that  ten persons had participated in the commission of the  said offence. But the name of the Appellant was not

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mentioned and instead he was described as Gitta (short  statured) with a beard.

9. On  the  strength  of  the  said  FIR,  investigation  machinery was set into motion and prosecutrix was sent  for medical examination. On 24.06.1994, at 3.30 a.m.  Prosecutrix was examined by P.W-6, Dr. Sushma Saini,  Medical  Officer,  LNJP  Hospital  at  Kurukshetra.  Her  medical report and evidence would be discussed at a  later stage. Statement of prosecutrix under Section  164 of the Criminal Procedure Code, (hereinafter shall  be  referred  to  as  'Cr.PC')  was  recorded  by  Shri  

Jagdeep  Jain,  RCS,  Judicial  Magistrate,  1st Class,  Kurukshetra  on  27.06.1994.  Thereafter  on  28.06.1994  her further statement was recorded under Section 161  of Cr.PC. A perusal of both the aforesaid statements  clearly indicates that she has given the name of the  present  Appellant  Krishan  Kumar  Malik  as  the  perpetrator, describing him as short statured person.

10.  The FIR lodged by prosecutrix was also sent to

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local Magistrate on 24.06.1994 at 2.20 a.m. During the  course of investigation, all the accused were arrested.  After completion of investigation, the accused were put  on  trial  for  commission  of  the  said  offence  before  Additional Sessions Judge, Kurukshetra. They pleaded not  guilty and requested for a judicial trial.

11.  In order to bring home the charges levelled against  the accused, the prosecution had examined 14 witnesses  on  its  behalf.  Defence  also  examined  5  witnesses  on  their behalf. On appreciation of evidence available on  record, the trial court convicted the Appellant and the  remaining  7  accused  mentioned  hereinabove  and  awarded  sentences to all of them.

12.  Subsequently, as has been previously stated, in  appeals preferred by all the 8 accused, before the  High  Court two of them namely Vijay Kumar and Krishan Kumar  Takkar  were  acquitted  and  conviction  of  remaining  accused  was  upheld.  However,  this  appeal  has  been  preferred by only Krishan Kumar Malik.

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13.  We have accordingly heard Mr. Jaspal Singh, learned  Senior  Advocate,  ably  assisted  by  Mr.  Sanjeev  Anand,  learned  counsel  for  the  Appellant  and  Mr.  Roopansh  Purohit with  Mr. Ramesh Kumar learned counsel for the  Respondent State and have perused the record.

14. The  basic  and  foremost  question  that  arises  for  consideration  in  this  appeal  is  whether  the  present  Appellant  had  committed  the  offence  of  abduction  and  rape on the prosecutrix on 23.06.1994 or whether he has  been falsely implicated.

15. With intention to proceed further and complete the  journey to reach the destination, we would first like to  consider the evidence of prosecutrix threadbare. She was  examined as P.W.9. Admittedly she had not mentioned the  name of the Appellant in the FIR lodged by her promptly,  instead she described him as Gitta (Short statured) with  beard,  even   though  she  was  aware  of  his  name.  No  explanation has been offered by her in this regard.

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16. According to the prosecutrix, only two accused had  sexual intercourse with her and other four were sitting  in the room fondling with her body parts. It may be  pertinent to point out that the number of people who  were  with  the  prosecutrix  during  the  abduction  and  subsequent rape, has not been conclusively ascertained.  This  point  has  been  explored  in  detail  in  the  next  paragraph. This  appears to be quite improbable as there  were admittedly other rooms, where they could have sat  so as to allow the Appellant to do the act in privacy.  It  is  not  her  case  that  due  to  shortage  of  time  or  accomodation this method was adopted.

17. The Prosecutrix admitted in her cross examination  that she had come to know the names of all the accused  during the course of occurence, as they were taking each  other's names. If that be so, then why she did not name  the Appellant in the FIR is a million dollar question?  These  ommissions  speak  volumes  against  her  and  her  credibility stands shaken. It is also to be noted that

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initially she reported that there were in all 10 persons  but  later  on  she  deposed  that  there  were  only  eight  persons  and  at  some  place  she  narrated  that  only  7  persons were there. When she had ample time to count the  number of persons then why this wavering in the number  of  persons.  These  acts  or  omissions  of  Prosecutrix  cannot be said to be minor contradictions as these are  very  relevant  pieces  of  evidence.  Because  of  such  contradictions,  an  agile  and  active  court  can  differentiate between genuine cases from the frivolous  and concocted ones. The role of courts in such cases is  to see, whether the evidence available before the court  is enough and cogent to prove the accused guilty.  

18. From  the  record  it  is  established  that  she  was  member of a Musical Concert Party, which used to perform  at  various  functions.  Her  photographs  and  video  recording fully reflects it, yet she had the audacity to  deny this fact. It is also pertinent to mention, if she  had really met her mother Narayani and sister at the Bus

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Stop in Kurukshetra then, why Narayani or her sister  Sangeeta was not examined by the Prosecution. Thus story  of  meeting  them  at  Kurukshetra  Bus  Stop  is  wholly  unreliable and it appears to be concocted.

19. Medical  evidence  shows  that  her  Labia  Majora  and  Labia Minora were healthy and had no marks of injury.  Hymen had old healed tear and the same was not red hot  or tender and did not bleed on touching. Vagina admitted  two  fingers  easily.   P.W.6  Dr.  Sushma  Saini  further  opined  in  her  cross-examination  that  she  might  be  habitual to sexual intercourse prior to 23.06.1994. Her  Medico Legal Report and medical evidence further reveal  that she had not received any significant injuries on  other  parts  of  her  body  and  injuries  on  her  private  parts were much less as mentioned by her in the FIR,  except for the cheek bite.

20. Admittedly, she had travelled certain distance in  the Maruti Van after her alleged abduction but she did  not raise any alarm for help. This shows her conduct and

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behaviour  during  the  whole  process  and  render  her  evidence shaky and untrustworthy.

21. The  statement  of  the  prosecutrix  that  in  all  11  persons were there in the Maruti Van renders it further  doubtful  as  it  would  be  extremely  difficult  for  11  persons  to  be  accommodated  in  the   Maruti  Van,  the  seating capacity of which is only 5.

22. During the course of investigation, the prosecutrix  was taken to the area, to point out the Kothi, where she  was said to have been subjected to rape, but she failed  to identify the said kothi.  It may be recalled that she  was  alleged  to  have  been  abducted   during  broad  day  light, thus her failure to identify  the kothi, fully  belies her case.

23.    These are some of the salient features of the lop  sided story of the prosecutrix, more so, when it has not  been corroborated by any other evidence. On the account  of various serious contradictions in the statement of

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prosecutrix  and  her  actions,  it  could  be  safely  concluded that she was certainly not telling a gospel  truth.

24.   Needless  to  say  the  solitary  evidence  of  the  prosecutrix to bring home the charge of abduction and  commission of rape by the Appellant  does not inspire  confidence  and  is  not  of  sterling  quality.  In  our  opinion,  it  is  neither  prudent  nor  safe  to  hold  the  Appellant guilty of commission of the said offence. We  hold so, on account of many other circumstances, which  are against the prosecution, narrated hereinbelow:

25.  Admittedly, no identification parade was conducted  to identify the Appellant as the description given by  prosecutrix about the details did not match with his  appearance.  All through, she has been describing the  Appellant  as  gitta  (short  statured)  man  with  beard,  whereas a statement before the Bench has been made by  learned counsel for Appellant, after verification from  the Appellant's wife,  that he is 5' 6” tall. This fact

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has  been  independently  corroborated  by  the  jailor's  report on this specific query.  Even though a man having  height  of  5'  6”  cannot  be  said   be  tall  but  by  no  stretch  of  imagination,  he  could  be  called  a  gitta  (short statured) man.

26.    Admittedly she was already shown the Appellant  and other accused at the Police Station,  after they  were arrested. Thus, her dock identification in Court  had become meaningless.

27.    No spot maps were prepared either  by the Naib  Tehsildar or by the Investigaing Officer to show the  size of the room.  If the size of the room was so small  then it could not have been possible to accommodate 7  persons and also allowing the Appellant to commit the  offence of  rape. If the size of the room could have  been verified, then the very genesis of commission of  the offence by the Appellant would fall flat. This could  have been possible to ascertain only if spot map had  been prepared. This was a lacuna on the part of the

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investigating  agency  and  prosecution,  the  benefit  of  which must accrue to the Appellant.   

28.    PW-11, Sohan Singh, Inspector/ SHO had not gone  to see the spot at all.  He has admitted this in the  following manner in his cross-examination:-

     “Since I have never visited house No.  919/13,  no  site  plan  of  that  house  was  prepared.  Because the prosecutrix herself  has not stated the number of house.  She was  even unable to identify this house.  I did  not take the prosecutrix in house No. 919/13  inspite  of the fact disclosed by accused on  27.6.1994.”

       This certainly reflects and shows the casual  manner in which the investigation was conducted.

29.  PW-13, Sub Inspector Ramji Lal, has also admitted  this fact by making the following statements:

“However, Sneh Lata was not in a position to  locate  the  place  of  the  incident.  Thereafter, I took her to Radaur.  Even in  Radaur she was not able to locate the place  where she was criminally assaulted.”   

   This further goes to show that not only the

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prosecutrix but even the I.Os failed to locate the site  where offence of rape was said to have been committed.

30. According to the prosecutrix, she was abducted  from the house of Bimla Devi where, apart from the above  two ladies, husband of Bimla Devi, Des Raj and sons of  Des Raj and Bimla Devi were present.  They had raised  hue and cry for help at the time of abduction. Many  neighbours had come out of their houses but surprisingly  enough prosecution has not examined either Bimla Devi or  her husband, their sons or any of their neighbours.  No  plausible and valid reasons have been given for their  non-examination.   

31. No doubt, it is true that to hold an accused  guilty  for  commission  of  an  offence  of  rape,  the  solitary evidence of prosecutrix is sufficient provided  the  same  inspires  confidence  and  appears  to  be  absolutely  trustworthy,  unblemished  and  should  be  of  sterling  quality.   But,  in  the  case  in  hand,  the  evidence  of  the  prosecutrix,  showing  several  lacunae,

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have  already  been  projected  hereinabove,  would  go  to  show that her evidence does not fall in that category  and cannot be relied upon to hold the Appellant guilty  of  the  said  offences.  Indeed  there  are  several  significant variations in material facts in her S.164  statement,  S.161  statement  (Cr.P.C.),  FIR   and  deposition in Court.

32.Thus,  it  was  necessary  to  get  her  evidence  corroborated independently, which they could have done  either by examination of Ritu, her sister or Bimla  Devi, who were present in the house at the time of her  alleged abduction. Record shows that Bimla Devi though  cited as a witness was not examined and later given up  by the public prosecutor on the ground that she has  been won over by the Appellant.

33.As per the FIR lodged by the prosecutrix, she first  met her mother Narayani and sister at the bus stop at  Kurukshetra but they have also not been examined, even  though  their  evidence  would  have  been  vital  as

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contemplated under Section 6 of the Indian Evidence  Act, 1872 (for short “The Act”) as they would have  been  Res  Gestae  witnesses.   The  purpose  of  incorporating Section 6 in the Act is to complete the  missing links in the chain of evidence of the solitary  witness.  There is no dispute that she had given full  and  vivid  description  of  the  sequence  of  events  leading to the commission of the alleged offences by  the Appellant and others upon her. In that narrative,  it is amply clear that Bimla Devi and Ritu were stated  to be at the scene of alleged abduction. Even though  Bimla Devi may have later turned hostile, Ritu could  still have been examined, or at the very least, her  statement recorded. Likewise, her mother could have  been similarly examined regarding the chain of events  after the prosecutrix had arrived back at Kurukshetra.  Thus, they would have been the best person to lend  support to the prosecution story invoking Section 6 of  the Act.

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34. We shall now deal with Section 6 of the Act,  wich reads as under:

“6.  Relevancy of facts forming part  of  same transaction – Facts which, though not  in issue, are so connected with a fact in  issue  as  to  form  part  of  the  same  transaction,  are  relevant,  whether  they  occurred at the same time and place or at  different times and places.

Black’s Law Dictionary defines Res Gestae as follows: (Latin: “things done”) The events at issue,  or other events contemporaneous with them  In evidence law, words and statements about  the res gestae are usually admissible under  a hearsay exception (such as present sense  impression or excited utterance).

       The  said  evidence  thus  becomes  relevant  and  admissible as res gestae  under Section 6 of the Act.  

35. Section 6 of the Act has an exception to the general  rule where-under, hearsay evidence becomes admissible.  But as for bringing such hearsay evidence within the  ambit of Section 6, what is required to be established  is that it must be almost contemporaneous with the acts

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and there could not be an interval which would allow  fabrication.  In other words, the statements said to be  admitted as forming part of  res gestae must have been  made  contemporaneously  with  the  act  or  immediately  thereafter.

36.  Admittedly, she had met her mother Narayani and  sister soon after the occurrence, thus, they could have  been  the  best  res  gestae  witnesses,  still  the  prosecution  did  not  think  it  proper  to  get  their  statements recorded. This shows the negligent and casual  manner  in  which  prosecution  had  conducted  the  investigation then the trial. This lacunae has not been  explained by the prosecution. The prosecution has not  tried to complete this mssing link so as to prove it,  beyond shadow of doubt, that it was Appellant who had  committed the said offences.  

37. Learned Single Judge of the High Court, on the same  set  of  evidence  has  acquitted  two  accused,   without  assigning any cogent, valid or specific reasons for it

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whereas on the same very set of evidence, the Appellant  has been found guilty.  Why the same benefit could not  have been bestowed to the Appellant has not been dealt  with specifically in the impugned judgment.

38.Prosecution also adopted a peculiar mode in the case  as  the  first  statement  of  prosecutrix  was  recorded  under Section 164 of the Cr.P.C. on 27.06.1994 before  Judicial  Magistrate,  First  Class,  Kurukshetra.  Only  thereafter on 28.06.2004, her further statement under  Section 161 of the Cr.P.C. was recorded.

39. In fact, the procedure should have been otherwise.  This further shows  that right from the  beginning the  prosecution was doubtful on the trustworthiness of the  prosecutrix herself.  Precisely that was the reason that  she was first bound down by her statement under Section  164 of the Cr.P.C.

40.  The Appellant was also examined by the doctor, who  had found him capable of performing sexual intercourse.  In the undergarments of the prosecutrix, male semen were

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found  but  these  were  not  sent  for  analysis  in  the  forensic  laboratories  which  could  have  conclusively  proved, beyond any shadow of doubt with regard to the  commission of offence by the Appellant. This lacuna on  the part of the prosecution proves to be fatal and goes  in favour of the Appellant.

41.  It is pertinent to mention here that Appellant is a  physically handicapped person to the extent of 55% as  per Doctor's Report, and this fact is not controverted  by the prosecution. This much of handicap of any person  would be easily noticeable, which Appellant failed to  mention  at  all.  In  fact,  this  would  have  been  much  better  identification  of  the  Appellant,  which  the  prosecutrix did not mention at all.

42. On account of aforesaid shortcomings, irregularities  and  lacuna  on  the  part  of  the  prosecution,  in  our  considered opinion, it will not be safe to convict the  Appellant.  

43. With regard to the matching of the semen, we find it

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from Taylor’s 2nd Edn. (1965) Principles and Practice of  Medical Jurisprudence as under:-

“Spermatozoa  may  retain  vitality  (or  free  motion) in the body of a woman for a long  period, and movement should always be looked  for in wet specimens.  The actual time that  spermatozoa  may  remain  alive  after  ejaculation cannot be precisely defined, but  is  usually  a  matter  of  hours.   Seymour  claimed to have seen movement in a fluid as  much as 5 days old.  The detection of dead  spermatozoa  in stains may be made at long  periods after emission, when the fluid has  been  allowed  to  dry.   Sharpe  found  identifiable  spermatozoa  often  after  12  months and once after a period of 5 years.  Non-motile  spermatozoa  were  found  in  the  vagina after a lapse of time which must have  been 3 and could have been 4 months.”

44. Had  such  a  procedure  been  adopted  by  the  prosecution, then it would have been a foolproof case  for it and against the Appellant.    

45. Now, after the incorporation of Section 53 (A) in  the  Criminal  Procedure  Code,  w.e.f.  23.06.2006,  brought  to  our  notice  by  learned  counsel  for  the  Respondent-State,  it  has  become  necessary  for  the  prosecution to go in for  DNA test  in such type of

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cases, facilitating the prosecution to prove its case  against the accused.   Prior to 2006, even without the  aforesaid  specific  provision  in  the  Cr.P.C.  prosecution  could  have  still  resorted  to  this  procedure  of  getting  the  DNA  test  or  analysis  and  matching of semen of the Appellant with that  found on  the undergarments of the  prosecutrix to make it a  fool proof case, but they did not do so, thus they  must face the consequences.

46.  We have also gone through the orders of dismissal  pased by this Court in Crl.M.P. No.  9646 on 15.06.2009  as also of the Review Petition  dated 05.11.2009 filed  by Smt. Hardevi. Admittedly, the said orders passed in  the SLP and Review Petition by this Court did not assign  any  reasons  for  the  dismissal,  thus  it  would  not  be  proper and safe for us to place reliance thereon.

47. Thus, looking to the matter from all angles, we are  of the considered opinion that the conviction of the  Appellant cannot be upheld.

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48.Thus, appeal is hereby allowed. Judgment and order of  conviction  as  recorded  by  the  trial  court  and  confirmed by learned Single Judge of the High Court  qua the appellant are hereby set aside and quashed.  The Appellant is acquitted of all the charges.  

49. He be set at liberty forthwith if not required in any  other criminal case.

......................J.    [DALVEER BHANDARI]

      ......................J.

  [DEEPAK VERMA] New Delhi July 4, 2011

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lacunae