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Reportabl e

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2238 OF 2010

Md. Ali @ Guddu ... Appellant

Versus

State of U.P.        ... Respondent

WITH

CRIMINAL APPEAL NO.425 OF 2015  (@ SLP(Crl.) NO. 9896 of 2011)

CRIMINAL APPEAL NO. 636 OF 2012

J U D G M E N T

Dipak Misra, J.

Leave granted in SLP (Crl.) No. 9896 of 2011

2. The  present  appeals  are  directed  against  the  

common judgment and order  dated 25.03.2009 passed  

by the High Court of Judicature at Allahabad in Criminal

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Appeal No. 602 of 2006 and Criminal Appeal No. 863 of  

2006 whereby  the learned Single Judge has given the  

stamp  of  approval  to  the  judgment  and  order  dated  

30.01.2006  passed  by  the  learned  Additional  Sessions  

Judge/F.T.C.,  Hapur,  District  Ghaziabad  whereunder  he  

had convicted the appellants under Section 363, 366 and  

376 I.P.C. and sentenced each of them to  undergo three  

years rigorous imprisonment under Section 363 IPC and  

to pay a fine of Rs.2,000/- with a default clause, five years  

rigorous  imprisonment  and  to  pay  a  fine  of  Rs.3,000/-  

under  Section  366  IPC  and  ten  years  rigorous  

imprisonment  and  to  pay  a  fine  of  Rs.5,000/-  under  

Section  376  IPC  with  the  default  sequitur.   All  the  

sentences were directed to run concurrently.   

3. The prosecution case, as has been unfurled, is that a  

written report was filed by the complainant, Smt. Aneesa,  

PW-2, on 3.12.1996 on the allegation that on 22.11.1996,  

around  midnight,  her  daughter,  Gulistan,  PW-1,  aged  

about 14 years, went out of her house to answer the call  

of  nature  but  did  not  return  for  a  considerable  time.  

Being anxious, she went in search of her and at that time  

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Ali Waris, one of the appellants herein, informed her that  

he had left her daughter at his door.  Thereafter, PW-2  

and  his  son  Abrar,  PW-4,  searched  for  her  in  the  

neighbourhood as well as amongst the relatives but as it  

turned out to be an exercise in futility, she sensed some  

foul play and eventually informed the police that Ali Waris  

and  Mohammad   Ali  @  Guddu  had  kidnapped  her  

daughter.  After the criminal law was set in motion, the  

investigating  agency  commenced  the  search  of  the  

victim.  As the factual matrix would uncurtain, Abrar had  

along with co-villagers,  namely,  Arif  s/o  Md.  Rafi,  Zulfi,  

Papat, Shafiq and others had gone in search of his sister,  

they had reached village Loni and Arif  s/o  Azam Khan  

brought Gulistan from a house and handed over to him.  

All of them along with Gulistan went to the police station  

on 18.1.1997 and PW-2 and Gulistan, PW-1, submitted an  

application at the police station Dhaulana.  The statement  

of the victim was recorded under Section 164 of the Code  

of Criminal Procedure.  The investigating agency sent the  

victim for medical examination, recorded the statements  

of  seven  witnesses,  prepared  the  site  plan  and  after  

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completing  other  formalities  placed  the  chargesheet  

against eight accused persons, namely, Ali Waris, Md. Ali,  

Mehmood,  Allahrakha,  Sirajoo,  Fazal,  Shamshad  and  

Sarfraz for the offences punishable under Sections 363,  

366, 368 and 376, IPC before the competent Court which  

in turn committed the matter to the Court of Session.   

4. The accused persons abjured their guilt and pleaded  

false implication due to political rivalry relating to Gram  

Sabha  Pradhan elections.

5. In course of trial, the prosecution, to bring home the  

charges,  examined  seven  witnesses,  namely,  Gulistan,  

PW-1,  the prosecutrix,  Anisha, PW-2,  the informant and  

the mother of the victim, Liyaqat Ali, PW-3, Abrar, PW-4,  

the brother of the victim, Maqsood, PW-5, Mahavir Singh,  

PW-6 and Dr. Rekha Singh, PW-7 who had examined the  

victim.  Be it noted, PWs 3 and 5 have turned hostile.   

6. The accused persons in  their  statements  recorded  

under Section 313 of CrPC denied their involvement in the  

occurrence.  Their plea was that they had supported Ali  

Waris in village Pradhan election and the rival party Arif, a  

relative of PWs 1, 2 and 4 was defeated.  The defence in  

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order to establish its plea examined one witness, namely,  

Jaggi Rana, DW-1.

7. The learned trial Judge on appreciation of evidence  

brought on record came to hold that the prosecution had  

been able to establish the charges against four accused  

persons, namely, Ali Waris, Mohd. Ali @ Guddu, Mehmood  

and Fazal for the offences under Sections 366, 368 and  

376  of  I.P.C.,  but  had  failed  to  bring  home  charges  

against  other  accused  persons  and  on  that  basis  

convicted and imposed the sentence as has been stated  

hereinbefore.

8. Being  aggrieved  by  the  aforesaid  judgment  of  

conviction  and  order  of  sentence,  Fazal  Mohd.  Ali  and  

Mehmood preferred Criminal Appeal No. 602 of 2006 and  

Ali Waris preferred an independent Appeal being Criminal  

Appeal No. 863 of 2006.  It is worthy to state here that  

the State had not assailed the judgment of acquittal of  

the four accused persons.   The High Court appreciated  

the evidence and by placing reliance on the testimony of  

PWs 1, 2 and 4 had opined that the findings recorded by  

the learned trial Judge was flawless.  Being of the said  

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view, it affirmed the judgment of conviction and the order  

of sentence.    

8. We have heard Mr. Lajja Ram, learned counsel for  

the  appellants  and  Mr.  Ratnakar  Dash,  learned  senior  

counsel for the State.

9. It  is  submitted  by  the  learned  counsel  for  the  

appellants that the learned trial Judge as well as the High  

Court has absolutely gone wrong by coming to hold that  

the age of the victim was less than eighteen years on the  

date of occurrence.  It is his further submission that the  

appreciation of evidence by the trial Court and the High  

Court  is  totally  perverse  inasmuch  as  in  the  obtaining  

factual matrix, the evidence of the prosecution witnesses  

could  not  have  been  remotely  given  credence  to.  

Learned  counsel  has  seriously  criticized  the  delay  in  

lodging  of  the  FIR,  regard  being  had  to  the  unnatural  

facet, for PW-2 had lodged the FIR after 11 days whereas  

any reasonable person would have immediately informed  

the police about the missing of his/her  daughter.   It  is  

canvassed  by  him  that  the  entire  allegations  of  the  

prosecution  are  built  on  an  unacceptable  plinth  and  

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regard  being  had  to  the  evidence  brought  on  record  

which  is  completely  sketchy,  the  conviction  could  not  

have been recorded.  Mr. Lajja Ram has submitted that  

the medical evidence does not support the prosecution  

version and the present case being not one where the  

evidence of the prosecutrix is so unmatchable that solely  

on the basis of her testimony and the conviction can be  

recorded,  said  medical  evidences  gains  significance.  

Learned counsel would submit that the testimony of the  

victim,  the  conduct  of  the  mother  and  the  nature  of  

allegations made against the accused persons lead to a  

definite conclusion that the entire story put forth by the  

prosecution  is  wholly  incredible  and  the  learned  trial  

Judge has  lent  credence to  the  testimony on  assumed  

reasoning  and  the  High  Court  has  concurred  with  the  

same without proper appreciation of the evidence which  

is the obligation of the appellate Court hearing a criminal  

appeal.

9. Mr. Ratnakar Dash, learned senior counsel appearing  

for the State in his turn would contend there has been a  

concurring  finding  of  facts  with  regard  to  the  age and  

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there is no justification or warrant to interfere with the  

same.   Learned  senior  counsel  would  submit  that  the  

prosecutrix was under constant fear as has been stated  

by  her  and  hence,  under  the  obtaining  circumstances  

there  is  no  reason  not  to  believe  her  testimony  and  

unsettle the conviction.  It is urged by him that findings  

recorded by the trial  Court which have been concurred  

with by the High Court, by no stretch of imagination, can  

be called perverse warranting interference by this Court.

10. To  appreciate  the  rival  submissions  raised  at  the  

bar,  we  have  bestowed  our  anxious  consideration  to  

weigh and analyse the evidence brought on record for the  

purpose  whether  testimony  of  the  victim  deserves  

acceptance and ultimately the prosecution case deserves  

acceptation.  Though the learned counsel for the parties  

have  urged  the  point  with  regard  to  the  age  of  the  

prosecutrix, the same need not be adverted to.  Suffice it  

to  mention  that  PW-2,  the  mother  of  the  victim,  had  

alleged that her daughter was fourteen years of age on  

22.11.1996 when she was kidnapped.   The ossification  

test has pointed out that she was approximately eighteen  

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years of age.  The learned trial Judge has opined that she  

was  less  than  eighteen  years  and  the  High  Court  has  

accepted  the  same.   The  said  issue  would  gain  

prominence, if the story set forth by the prosecution is  

accepted  to  be  credible,  for  then only  the  question  of  

consent by the prosecutrix for the offences would arise.  If  

the  entire  prosecution  story  is  discarded  as  being  

incredulous,  then  the  said  aspect  would  certainly  melt  

into insignificance.   

11. Having stated so, we shall proceed to deal with the  

pertinent facts in this regard.  Prior to that it is essential  

to  address  the  issue  of  propriety  and  the  conceptual  

parameters or conceptions based on well accepted norms  

and paradigms to exercise the power of this Court under  

Article 136 of the Constitution.

12. In Arunachalam v. P.S.R. Sadhanatha and Anr.1  

it has been expressed thus:

“The power is plenary in the sense that there  are no words in Article 136 itself qualifying that  power. But,  the very nature of the power has  led the court to set limits to itself within which  to  exercise  such  power.  It  is  now  the  well- established practice of this Court to permit the  

1  (1979) 2 SCC 297

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invocation of the power under Article 136 only  in  very  exceptional  circumstances,  as  when a  question  of  law  of  general  public  importance  arises  or  a  decision shocks  the  conscience of  the court.  But,  within the restrictions imposed  by itself, this Court has the undoubted power to  interfere even with findings of fact, making no  distinction between judgments of acquittal and  conviction, if the High Court, in arriving at those  findings,  has  acted  ‘perversely  or  otherwise  improperly’.”                                         

[emphasis supplied]

13. In State of U.P. v. Babul Nath2, a two Judge Bench  

has laid down thus:

“At the very outset we may mention that in an  appeal under Article 136 of the Constitution this  Court  does  not  normally  reappraise  the  evidence by itself and go into the question of  credibility of the witnesses and the assessment  of the evidence by the High Court is accepted  by the Supreme Court as final unless, of course,  the  appreciation  of  evidence  and  finding  is  vitiated  by  any  error  of  law  of  procedure  or  found  contrary  to  the  principles  of  natural  justice, errors of record and misreading of the  evidence, or where the conclusions of the High  Court  are  manifestly  perverse  and  unsupportable from the evidence on record.”

14. In  Ganga Kumar Srivastava v. State of Bihar3,  

the Court after referring to series of decisions on exercise  

of  the  power  of  this  Court  under  Article  136  of  the  

Constitution culled out following principles: 2 (1994) 6 SCC 29 3  (2005) 6 SCC 211

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“(i) The powers of this Court under Article 136  of the Constitution are very wide but in criminal  appeals this Court does not interfere with the  concurrent findings of fact save in exceptional  circumstances.

(ii) It is open to this Court to interfere with the  findings of fact given by the High Court, if the  High  Court  has  acted  perversely  or  otherwise  improperly.

(iii) It is open to this Court to invoke the power  under  Article  136  only  in  very  exceptional  circumstances as and when a question of law of  general public importance arises or a decision  shocks the conscience of the Court.

(iv)  When  the  evidence  adduced  by  the  prosecution  fell  short  of  the  test  of  reliability  and acceptability and as such it is highly unsafe  to act upon it.

(v)  Where  the  appreciation  of  evidence  and  finding  is  vitiated  by  any  error  of  law  of  procedure or found contrary to the principles of  natural justice, errors of record and misreading  of the evidence, or where the conclusions of the  High  Court  are  manifestly  perverse  and  unsupportable from the evidence on record.”

15. In Alamelu and Another v. State, represented y   

Inspector  of  Police4,  it  has  been  stated  that  even  

though the powers of this Court under Article 136 of the  

Constitution are very wide, but in criminal appeals, this  

4  (2011) 2  SCC 385

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Court would not interfere with the concurrent findings of  

fact save in very exceptional cases.  In an appeal under  

Article  136  of  the  Constitution,  this  Court  does  not  

normally appreciate the evidence by itself and go into the  

question of credibility of witness.   Elaborating further, the  

Court has opined that the assessment of the evidence by  

the  High  Court  is  accepted  as  final  except  where  the  

conclusions  recorded by  the  High  Court  are  manifestly  

perverse and unsupportable by the evidence on record.  

16. Keeping  the  aforesaid  principles  in  view,  we  shall  

proceed to scrutinize the materials on record, for we are  

convinced  that  the  conclusions  arrived  at  by  the  High  

Court  are  totally  unsupportable  on  the  basis  of  the  

evidence on record.  For the aforesaid purpose, first we  

shall advert to the issue of lodging of the First Information  

Report.  As is demonstrated, the victim missed from the  

house on 22.11.1996 but the mother lodged the FIR on  

3.12.1996 almost after expiry of eleven days alleging the  

factum of kidnapping by the accused persons, namely, Ali  

Waris and Md. Ali @ Guddu.  It is interesting to note that  

the mother, had alleged that Ali Waris had left the girl at  

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her door steps.  In such a circumstance, if nothing else,  

the  PW-2,  the  mother,  who  is  expected  to  have  

necessitous  concern,  could  have  gone  to  the  police  

station  to  lodge  a  missing  report  which  could  have  

prompted the investigation officer to act.  It baffles the  

commonsense  that  the  mother  after  searching  in  the  

neighbourhood as well as amongst the relatives still, for  

some unfathomable reason that defeats the basic human  

prudence approached the police station quite belatedly.  

It is apt to mention here that in rapes cases the delay in  

filing the FIR by the prosecutrix or by the parents in all  

circumstance is not of significance.  The authorities of this  

Court have granted adequate protection/allowance in that  

aspect  regard  being  had  to  the  trauma  suffered,  the  

agony  and  anguish  that  creates  the  turbulence  in  the  

mind  of  the  victim,  to  muster  the  courage  to  expose  

oneself in a conservative social  milieu.  Sometimes the  

fear of social stigma and on occasions the availability of  

medical  treatment  to  gain  normalcy  and above all  the  

psychological  inner  strength  to  undertake  such  a  legal  

battle.   But,  a  pregnant  one,  applying  all  these  

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allowances,  in  this  context,  it  is  apt  to  refer  to  the  

pronouncement in Rajesh Patel v. State of Jharkhand5  

wherein in the facts and circumstances of the said delay  

of 11 days in lodging the FIR with the jurisdictional police  

was  treated  as  fatal  as  the  explanation  offered  was  

regarded as totally untenable.  This Court did not accept  

the reasoning ascribed by the High Court in accepting the  

explanation as same was fundamentally erroneous.  

17. Coming to the case at hand, after the mother lodged  

the FIR implicating Ali Waris and Md. Ali, the brother, PW-

2, with his friends recovered the prosecutrix from village  

Loni and she was examined under Section 164, CrPC.  As  

is evident, she had left home on 22.11.1996.  As alleged,  

she was fourteen years of age.   The trial  court  on the  

basis of radiological test has opined that she was below  

eighteen years of age and the High Court has accepted  

the same.  The factum of age only if the findings recorded  

by the trial court and High Court are accepted, for as we  

find, there is no proper appreciation of evidence by trial  

court and definitely the High Court has failed to exercise  

5 (2013) 3 SCC 791

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its  appellate  jurisdiction  in  proper  perspective  as  is  

expected from it in law.  In Kamlesh Prabhudas Tanna  

v.  State  of  Gujarat6 dealing  with  the  duty  of  the  

appellate court, this Court observed:-

“At this juncture, we are obliged to state that  though  it  may  be  difficult  to  state  that  the  judgment suffers from sans reasons, yet it is not  at all difficult to say that the reasons ascribed  are  really  apology  for  reasons.  If  we  allow  ourselves  to  say  so,  one  may  ascribe  certain  reasons  which  seem  to  be  reasons  but  the  litmus  test  is  to  give  seemly  and  condign  reasons  either  to  sustain  or  overturn  the  judgment.  The  filament  of  reasoning  must  logically  flow  from  requisite  analysis,  but,  unfortunately,  the said  exercise has  not  been  carried out. In this context, we may refer with  profit to the decision in Padam Singh v. State of  U.P.7, wherein a two-Judge Bench, while dealing  with  the  duty  of  the  appellate  court,  has  expressed thus:  

“2. … It is the duty of an appellate court to  look into the evidence adduced in the case  and arrive at an independent conclusion as to  whether the said evidence can be relied upon  or not and even if it can be relied upon, then  whether the prosecution can be said to have  been proved beyond reasonable doubt on the  said evidence. The credibility of a witness has  to  be  adjudged  by  the  appellate  court  in  drawing inference from proved and admitted  facts.  It  must  be  remembered  that  the  appellate court, like the trial court, has to be  satisfied  affirmatively  that  the  prosecution   

6  (2013) 15 SCC 263 7 (2000) 1 SCC 621

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case is substantially true and the guilt of the   accused  has  been  proved  beyond  all   reasonable  doubt  as  the  presumption  of   innocence  with  which  the  accused  starts,   continues right through until he is held guilty   by  the  final  Court  of  Appeal  and  that   presumption  is  neither  strengthened  by  an   acquittal nor weakened by a conviction in the   trial court.”

18. In  Rama v.  State  of  Rajasthan8 the  Court  has  

expressed about the duty of the appellate court thus:  

“4. … It is well settled that in a criminal appeal,  a duty is enjoined upon the appellate court to  reappraise  the  evidence  itself  and  it  cannot  proceed to dispose of the appeal upon appraisal  of evidence by the trial  court alone especially  when the appeal has been already admitted and  placed  for  final  hearing.  Upholding  such  a  procedure  would  amount  to  negation  of  valuable right  of  appeal  of an accused,  which  cannot be permitted under law.”

Similar  principles  have  been  reiterated  in  Iqbal  

Abdul  Samiya  Malek  v.  State  of  Gujarat9,  Padam  

Singh v. State of U.P.10 and  Bani Singh v. State of  

U.P.11  

19. A  three-Judge  Bench  in  Majjal v.  State  of  

Haryana12 has ruled thus:

8 (2002) 4 SCC 571 9  (2012) 11 SCC 312 10 (2000) 1 SCC 621 11  (1996) 4 SCC 720 12 (2013) 6 SCC 798

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“It  was  necessary  for  the  High  Court  to  consider whether the trial court’s assessment  of  the  evidence  and  its  opinion  that  the  appellant  must  be  convicted  deserve  to  be  confirmed.  This  exercise  is  necessary  because the personal liberty of an accused is  curtailed because of the conviction. The High  Court  must  state  its  reasons  why  it  is  accepting the evidence on record. The High  Court’s concurrence with the trial court’s view  would be acceptable only if it is supported by  reasons. In such appeals it is a court of first  appeal.  Reasons cannot  be cryptic.  By this,  we  do  not  mean  that  the  High  Court  is  expected  to  write  an  unduly  long  treatise.  The judgment may be short but must reflect  proper application of mind to vital  evidence  and important  submissions which go to  the  root of the matter.”

20. The obtaining factual matrix has to be appreciated  

on  the  touchstone  of  the  aforesaid  parameters.   Be  it  

clearly stated here delay in lodging FIR in cases under  

Section 376 IPC would depend upon facts of each case  

and  this  Court  has  given  immense  allowance  to  such  

delay,  regard being had to the trauma suffered by the  

prosecutrix  and  various  other  factors,  but  a  significant  

one, in the present case, it has to be appreciated from a  

different perspective.  The prosecutrix was missing from  

home.  In such a situation, it was a normal expectation  

that either the mother or the brother would have lodged a  

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missing report at the police station.  The same was not  

done.  This action of PW-2 really throws a great challenge  

to common sense.  No explanation has been offered for  

such delay.  The learned trial Judge has adverted to this  

facet  on an unacceptable  backdrop by referring to  the  

principle that prosecutrix suffered from trauma and the  

constraint of the social stigma.  The prosecutrix at that  

time was nowhere on the scene.  It is the mother who was  

required to inform the police about missing of her grown  

up daughter.  In the absence of any explanation, it gives  

rise to a sense of doubt.  That apart, the factum that the  

appellant informed the mother of the victim that he had  

left the prosecutirx at the door of her house also does not  

command acceptance.  The recovery of the prosecutrix  

by the brother  and her  friends also creates  a cloud of  

suspicion.  We are not inclined to believe the prosecution  

version as has been projected that one Arif had informed  

the brother of the prosecutirx that his sister was at his  

place but for reasons best known to the prosecution, Arif  

has  not  been examined.   That  apart,  the  persons who  

were  accompanying  the  brother  have  also  not  been  

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examined  by  the  prosecution.   Thus,  the  manner  of  

recovery of the prosecutrix from the house of Arif remains  

a mystery.   

21. Be it noted, there can be no iota of doubt that on the  

basis  of  the  sole  testimony  of  the  prosecutrix,  if  it  is  

unimpeachable and beyond reproach, a conviction can be  

based.  In the case at hand, the learned trial Judge as well  

as the High Court have persuaded themselves away with  

this principle without appreciating the acceptability and  

reliability of the testimony of the witness.  In fact, it would  

not be inappropriate to say that whatever the analysis in  

the  impugned  judgment,  it  would  only  indicate  an  

impropriety of  approach.   The prosecutrix  has deposed  

that  she  was  taken  from  one  place  to  the  other  and  

remained at various houses for almost two months.  The  

only explanation given by her is that she was threatened  

by the accused persons.  It is not in her testimony that  

she was confined to one place.  In fact, it has been borne  

out from the material  on record that she had travelled  

from  place  to  place  and  she  was  ravished  number  of  

times.  Under these circumstances, the medical evidence  

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gains  significance,  for  the  examining  doctor  has  

categorically  deposed that  there are no injuries on the  

private parts.  The delay in FIR, the non-examination of  

the  witnesses,  the  testimony  of  the  prosecutrix,  the  

associated  circumstances  and  the  medical  evidence,  

leave  a  mark  of  doubt  to  treat  the  testimony  of  the  

prosecutrix  as  so  natural  and  truthful  to  inspire  

confidence.    It  can  be  stated  with  certitude  that  the  

evidence of the prosecutrix is not of such quality which  

can be placed reliance upon.  True it is, the grammar of  

law  permits  the  testimony  of  a  prosecutrix  can  be  

accepted  without  any  corroboration  without  material  

particulars, for she has to be placed on a higher pedestal  

than  an  injured  witness,  but,  a  pregnant  one,  when  a  

Court, on studied scrutiny of the evidence finds it difficult  

to accept the version of the prosecutrix, because it is not  

unreproachable, there is requirement for search of such  

direct  or  circumstantial  evidence  which  would  lend  

assurance to her testimony.  As the present case would  

show, her testimony does not inspire confidence, and the  

circumstantial evidence remotely do not lend any support  

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to the same.  In the absence of both, we are compelled to  

hold  that  the  learned  trial  Judge  has  erroneously  

convicted the accused-appellants for the alleged offences  

and  the  High  Court  has  fallen  into  error,  without  re-

appreciating the material on record, by giving the stamp  

of approval to the same.

22. Resultantly,  the  appeals  are  allowed,  judgment  of  

conviction and order of sentence are set aside and as the  

appellants are on bail,  they be discharged of their  bail  

bonds.    

 ........................................J. [DIPAK MISRA]

........................................J.                  [N.V. RAMANA] NEW DELHI MARCH 10, 2015.

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