REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1516 of 2010

Mohd. Imran Khan            …Appellant

Versus

State (Govt. of NCT of Delhi)                    …Respondent

With

CRIMINAL APPEAL NO. 1517 of 2010

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Both these criminal appeals have been preferred against the  

common impugned judgment and order dated 8.12.2009 of the High  

Court of Delhi passed in Criminal Appeal Nos.311 of 1999 and 312  

of 1999, by which the High Court has affirmed the conviction of the  

appellants  under  Section  376  of  the  Indian  Penal  Code,  1860  

(hereinafter called ‘IPC’), however, set aside their conviction under  

Sections 366/34 IPC and further reduced the sentence from 7 years

RI to 5 years RI with a fine of Rs.10,000/- each and in default to  

undergo further punishment for 3 months.

2. Facts  and  circumstances  giving  rise  to  these  appeals  are  

unfolded by the statement of Shri Prabhu Dass (father of prosecutrix  

Monika)  dated  28.11.1989 made  before  the  Police  Station,  Vinay  

Nagar, New Delhi to the effect that his daughter Monika, aged about  

15 years, studying in standard 9th in Green Field School, Safdarjung  

Enclave, New Delhi had left her house on 24.11.1989 for going to  

school. She informed through telephone that she would stay in the  

house of her friend Amita for the night.   On 25.11.1989 at about  

8.30 a.m. Monika telephoned her cousin Satish Anand that she was  

going to Pragati Maidan along with her school friends and asked him  

to reach there so that she would come back with him.  Monika asked  

Satish Anand to meet her at Ahmed Food Restaurant, U.P. Pavilion,  

where Mohd.  Imran Khan and Jamal  Ahmed (appellants)  used to  

work.  Satish Anand went to Pragati Maidan at the pointed place, but  

he could neither meet Monika nor either of the appellants, but he  

came to know that Monika was roaming inside Pragati Maidan along  

with  the  appellants.   As  she  did  not  come back till  evening,  the  

complainant Prabhu Dass went to Pragati Maidan on 26.11.1989 and  

on enquiry he came to know that Monika was seen roaming with the  

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appellants.  The appellants were known to Monika as Prabhu Dass,  

complainant was having a stall of readymade garments at shop no.11  

in Anarkali Bazar, Pragati Maidan in front of the food stall where the  

appellants were working.  Complainant’s wife Devki and daughter  

Monika used to come to work there also. Complainant searched for  

his daughter at many places but could not find.  

3. On the basis of his statement, a case under Section 363 IPC  

was  registered  and  investigation  ensued.   It  was  during  the  

investigation Monika,  prosecutrix was recovered.  The appellants-

accused Mohd. Imran Khan and Jamal Ahmed were also arrested.  

Offences under Sections 366 and 376 IPC were added.  Monika was  

examined under Section 164 of Code of Criminal Procedure, 1973  

(hereinafter called ‘Cr.P.C.’) on the basis of which the appellants-

accused were arrested.  After having further investigation, offences  

punishable under Sections 342/506 IPC were also added.   

4. Monika, prosecutrix was medically examined to determine  

her age and to find out the possibility of commission of rape.  The  

appellants  were also examined medically.  After  conclusion of  the  

investigation, the matter was committed to Sessions Court and trial  

commenced.   Prosecution  examined  as  many  as  16  witnesses  in  

support  of  its  case.   The  defence  examined  4  witnesses.   Mohd.  

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Imran Khan, first appellant also examined himself under Section 315  

Cr.P.C.  After conclusion of the trial, the Trial Court vide judgment  

and orders dated 29.5.1999 and 31.5.1999 convicted the appellants  

under Section 366 IPC read with Section 34 and sentenced them to  

undergo RI for 4 years and a fine of Rs.2,000/- each.  In default of  

payment of fine, they would undergo SI for two months.  Both the  

appellants were further sentenced under Section 376 IPC to RI for 7  

years and a fine of Rs.3,000/- each.  In default of payment of fine,  

they would undergo SI for 3 months.  However, both the sentences  

were directed to run concurrently.

5. Being  aggrieved,  both  the  appellants  preferred  separate  

Criminal Appeal Nos.311 of 1999 and 312 of 1999 which have been  

disposed  of  by  the  common  impugned  judgment  and order  dated  

8.12.2009, by which the High Court acquitted both the appellants of  

the  charges  under  Sections  366/34  IPC,  but  maintained  their  

conviction under  Section 376 IPC.   However,  the sentence  under  

Section 376 IPC was reduced from 7 years to 5 years each and to pay  

a fine of Rs.10,000/- each failing which to undergo SI for 3 months.

Hence, these appeals.

6. Shri  Amrendra  Sharan,  learned  Senior  counsel  for  the  

appellant  Jamal  Ahmed in Criminal  Appeal  No.1517 of 2010 has  

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submitted that the prosecutrix Monika was over and above 16 years  

of age.  The Investigating Officer deposed in the court that the  Birth  

Certificate  produced  in  the  court  did  not  relate  to  her.   The  

prosecution did not  cross-examine him after  declaring hostile.   In  

such an eventuality the appellant  is  entitled for  the benefit  of  his  

statement. The appellant Jamal Ahmed had no physical connection  

with the prosecutrix.  She had an affair with Mohd. Imran Khan and  

had gone with him voluntarily.  She had been taken from Delhi  to  

Meerut by bus.  She met with an Advocate for planning her marriage  

with Mohd. Imran Khan.  She stayed in the hotel.  Thus, she had  

ample opportunity to raise hue and cry or inform some body at some  

place that she had been subjected to some threat or coercion.  The  

courts below erred in placing reliance on her statement.     

7. Shri  Anis  Ahmed,  learned  counsel  appearing  for  another  

appellant in Criminal Appeal No.1516 of 2010 has also assailed the  

impugned judgment on similar grounds.

8. Per contra, Shri P.P. Malhotra, learned ASG appearing for  

the State of Delhi has opposed the appeals contending that Monika,  

prosecutrix was below 16 years of age on the date of incident.  She  

remained under  persistent  threats  from the appellants.   Therefore,  

she could not raise hue and cry.   The concurrent finding of facts  

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regarding  rape  by  both  the  appellants  does  not  warrant  any  

interference.  The appeals lack merit and are liable to be dismissed.

9. We  have  considered  the  rival  submissions  made  by  the  

learned counsel for the parties and perused the record.  

10. The Trial Court has meticulously scrutinised and appreciated  

the evidence of the prosecution as well as of defence.  Shri Prabhu  

Dass, father of the prosecutrix died on 10.11.1995 during trial before  

his statement could be recorded. Som Wati, Lady Constable (PW.1)  

deposed that she was in the team which recovered the prosecutrix on  

29.11.1989 and taken her for  medical  examination.   She has also  

recovered the underwear of the prosecutrix and was handed over to  

I.O.  Dr. Reeta Rastogi (PW.2) proved the M.L.C., Ext.PW2/A of the  

prosecutrix  and  deposed  that  the  same  was  prepared  by  her  

according to which there was no sign of  external injury. The  hymen  

of the prosecutrix was  inflame and there was slight bleeding. Her  

vagina admitted two fingers tightly.  Prosecutrix was not habitual of  

intercourse but there was evidence of intercourse.  Its witness was  

not  cross-examined by the defence as to whether the evidence of  

intercourse was recent one or not.  Monika, the prosecutrix (PW.3)  

had given full version of the incident as to how she had been picked  

up  by  the  appellants  from  Pragati  Maidan.   She  knew  both  the  

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accused as they had been working in the stall near the stall of her  

father.  When prosecutrix was waiting for her cousin, the accused  

persons showed her a knife and told her in case she tried to run away  

or raise noise, they would kill her.  Both the accused persons forcibly  

took her to ISBT in a three wheeler and from there to Meerut by bus.  

The  accused  kept  their  respective  knives  on  the  back  of  the  

prosecutrix in such a manner that neither the passengers nor the bus  

conductor  could notice of  their  activity.   She was taken to  Hotel  

Ajanta in Meerut where the appellant Jamal Ahmed made the entry  

in the Hotel register and took her to room no.101. At the time of  

making entry in the Hotel register by accused Jamal Ahmed, accused  

Mohd. Imran Khan stayed with the prosecutrix throughout. Both the  

accused persons committed rape upon her in that room.  Next day in  

the morning  she was taken by the accused persons to the house of  

the  sister of  one of them and from there she was brought to Delhi to  

the  house  of  elder  brother  of  appellant  Jamal  Ahmed.   Both  the  

accused persons committed rape upon her in that house. They had  

put their  knives on her back in such a manner  that  other  persons  

could not notice them.  She could not raise hue and cry while coming  

from Meerut to Delhi as she was totally in a position of shock and  

the accused appellants threatened to kill her in case she raises voice  

or tries to run away.  On 27.11.1989 she had been locked inside the  

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house as the appellants had gone away and after coming back in the  

evening she was raped by both of them.  On 28.11.1989 both the  

appellants left the house and returned in the evening along with elder  

brother and brother-in-law of accused Imran.  These two persons had  

taken the prosecutrix to a flat behind G.B. Pant Hospital where she  

found both the appellants present. After sometime, police recovered  

her from that place and she was sent for medical examination.  Her  

statement was recorded under Section 164 Cr.P.C. on 29.11.1989.

11. Shri  Babu  Lal  (PW.11),  the  then  Metropolitan  Magistrate  

proved the statement of the prosecutrix recorded under Section 164  

Cr.P.C.  Other witnesses also supported the case of the prosecution.  

Both the appellants denied their involvement while their statements  

under Section 313 Cr.P.C. were recorded. Some defence witnesses  

were examined, however, relevant witness had been appellant Imran  

Khan who has examined himself as DW.5 under Section 315 Cr.P.C.  

According to him Monika, prosecutrix  met him on 25.11.1989 at 3  

p.m. at his restaurant and told him that her mother had turned her out  

so she would not go to her house and if he refused  to keep her she  

would die.  It was on the insistence of the prosecutrix that he along  

with another  appellant  and prosecutrix  went  to  Meerut  to  consult  

Shri Mustafa, Advocate who was known to other appellant, however,  

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the lawyer told her to bring the Birth Certificate etc. as it was to be  

produced in the court for getting married and court would issue one  

month’s notice.

12. All  the  prosecution  witnesses  have  faced  grilling  cross-

examination but nothing could be elicited to discredit  any part of  

their evidence.  This part of the prosecution has been accepted by  

both the courts and we do not see any cogent reason to interfere with  

the same.

13. Learned counsel for both the parties have emphasised on the  

question as to whether the conduct of the prosecutrix had been such  

that  the  appellants  could  not  be  held  responsible  as  she  had  

voluntarily gone with them to Meerut and, in spite of the fact, that  

she had ample opportunity to raise hue and cry or inform any person,  

she did not do so.  It is submitted on behalf of the appellants that it  

was  a  case  of  consent  as  the  prosecutrix  had  voluntarily  

accompanied  the  appellants  to  Meerut.   In  order  to  buttress  his  

argument,  Shri  Amrendra  Sharan,  learned  senior  counsel,  placed  

reliance upon the judgments of this Court in Mussauddin Ahmed v.  

State of Assam, (2009) 14 SCC 541; and Alamelu & Anr. v. State  

represented by Inspector of Police, (2011) 2 SCC 385, wherein after  

appreciating  the  evidence  on  record,  the  Court  held  that  the  

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prosecutrix had been a willing partner in the entire episode.  The  

conviction accorded under Section 376 IPC by the courts below has  

been set aside by this Court in similar circumstances.   

           In our considered opinion, such arguments may be relevant in  

case we reach the conclusion that the findings of fact recorded by the  

courts below on the issue of age of the prosecutrix and commission  

of rape could not be factually correct and were liable to be  set aside.  

In  view  of  the  fact  that  the  High  Court  has  acquitted  the  

appellants for the offences under Sections 366/34 IPC the issue of  

kidnapping is not required to be considered further.   

AGE :

14. Both the courts below have laboured hard to find out the age  

of the prosecutrix for the reason that  defence produced certificate  

from Safdarjung Hospital,  New Delhi  to create confusion and the  

I.O. in order to help the appellants had made a statement that the  

certificate on record did not belong to the prosecutrix.  The medical  

report of the Radiologist issued by Ram Manohar Lohia Hospital,  

New Delhi revealed that age of the prosecutrix was between 16 and  

17  years.   The  Birth  Certificate  issued  under  Section  17  of  the  

Registration of Birth & Death Act, 1969 reveals that a female child  

was born on 2.9.1974 by the wedlock of Prabhu Dass and Devki,  

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residents  of  Sector  12/69,  R.K.  Puram,  New  Delhi  and  its  

registration number had been 4840.  It also reveals that number of  

live  children  including  this  child  had  been  two.   However,  this  

certificate has been duly proved by Vijay Kumar Harnal, Medical  

Record  Officer,  Safdarjung  Hospital,  New  Delhi  (PW.9),  who  

explained that one female child was born in Safdarjung Hospital at  

7.15  a.m.  on  2.9.1974.   Her  mother’s  name  was  Devki,  wife  of  

Prabhu Dass and her address was R.K. Puram, New Delhi.  He also  

explained that the other Birth Certificate produced by the defence  

according to which a female child was born on 12.9.1971 was of a  

different  female  child  who  was  born  to  one  Devi  Rani,  wife  of  

Prabhu Dayal,  residents of Kotla Mubarakpur and thus, it  did not  

belong  to Monika, prosecutrix.  Similar evidence had been given by  

Dr. R.K. Sharma, C.M.O., N.D.M.C., Delhi (PW.7).  According to  

him,  the  female  child  was  born  with  Registration  No.4840  on  

2.9.1974 and he further explained that the name of the parents and  

address of another female child born on 27.9.1971 bearing different  

registration no.4502 had been totally different, i.e. Prabhu Dayal and  

Devi Rani, residents of Kotla Mubarakpur .  The number of living  

children  with  that  family  is  also  different  from  that  of  the  

prosecutrix.  These documents have thoroughly been examined by  

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the courts below and we do not see any cogent reason to examine the  

issue further.   

         The medical report and the deposition of the Radiologist   

cannot predict the exact date of birth, rather it gives an idea with a  

long margin of 1 to 2 years on either side. In  Jaya Mala v. Home  

Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this  

Court held:

“However,  it  is  notorious  and  one  can  take   judicial  notice  that  the  margin  of  error  in  age   ascertained  by  radiological  examination  is  two   years on either side.”  

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh &  

Anr., (2009) 6 SCC 681; and  State of Uttar Pradesh v. Chhotey  

Lal, (2011) 2 SCC 550)  

           In view of the above as we have seen the original record  

produced  before  us,  we  are  of  the  considered  opinion  that  the  

prosecutrix was less than 16 years of age on the date of incident.

EVIDENCE OF PROSECUTRIX:

15. It is a trite law that a woman, who is the victim of sexual  

assault, is not an accomplice to the crime but is a victim of another  

person’s lust.  The prosecutrix  stands  at  a  higher  pedestal  than an  

injured witness as she suffers from emotional injury. Therefore, her  

evidence need not be tested with the same amount of suspicion as  

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that of an accomplice. The Indian Evidence Act, 1872 (hereinafter  

called `Evidence Act’),  nowhere says that her evidence cannot be  

accepted  unless  it  is  corroborated  in  material  particulars.  She  is  

undoubtedly a competent witness under Section 118 of Evidence Act  

and her evidence must receive the same weight as is attached to an  

injured in cases of physical violence. The same degree of care and  

caution must attach in the evaluation of her evidence as in the case  

of an injured complainant or witness and no more. If the court keeps  

this in mind and feels satisfied that it can act on the evidence of the  

prosecutrix, there is no rule of law or practice incorporated in the  

Evidence Act similar to illustration (b) to Section 114 which requires  

it to look for corroboration. If for some reason the court is hesitant to  

place implicit  reliance on the testimony of the prosecutrix it  may  

look for evidence which may lend assurance to her testimony short  

of corroboration required in the case of an accomplice. If the totality  

of the circumstances appearing on the record of the case disclose that  

the prosecutrix does not have a strong motive to falsely involve the  

person  charged,  the  court  should  ordinarily  have  no hesitation  in  

accepting her evidence.  The court must be alive to its responsibility  

and  be  sensitive  while  dealing  with  cases  involving  sexual  

molestations.  Rape is not merely a physical assault, rather it often  

distracts the whole personality of the victim.  The rapist degrades the  

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very soul of the helpless female and, therefore, the testimony of the  

prosecutrix must be appreciated in the background of the entire case  

and in such cases, non-examination even of other witnesses may not  

be a serious infirmity in the prosecution case, particularly where the  

witnesses had not seen the commission of the offence. (Vide: State  

of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990  

SC 658;  State of U.P. v. Pappu  @Yunus & Anr.  AIR 2005 SC  

1248;  and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).  

Thus, the law that emerges on the issue is to the effect that  

statement  of  prosecutrix,  if  found  to  be  worthy  of  credence  and  

reliable,  requires  no  corroboration.   The  court  may  convict  the  

accused on the sole testimony of the prosecutrix.  

16.     The Trial  Court  came to the conclusion that  there was no  

reason to disbelieve the prosecutrix, as no self-respecting girl would  

level  a  false  charge  of  rape  against  anyone  by  staking  her  own  

honour.   The  evidence  of  rape  stood  fully  corroborated  by  the  

medical evidence.  The MLC of the prosecutrix Ext.PW2/A was duly  

supported by Dr. Reeta Rastogi (PW.2).

17. This view of the Trial Court stands fortified by the judgment  

of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996  

SC 1393, wherein this Court observed that “the courts must, while  

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evaluating evidence remain alive to the fact that in a case of rape, no  

self-respecting woman would come forward in a court just to make a  

humiliating statement against her honour such as is involved in the  

commission of rape on her.”  

         Similarly, in  Wahid Khan v. State of Madhya Pradesh,  

(2010) 2 SCC 9, it has been observed as under:  

“It is also a matter of common law that in Indian   society  any  girl  or  woman  would  not  make  such   allegations against a person as she is fully aware of   the repercussions flowing therefrom. If she is found   to be false, she would be looked at by the society   with  contempt  throughout  her  life.  For  an   unmarried girl, it will be difficult to find a suitable   groom. Therefore, unless an offence has really been   committed, a girl or a woman would be extremely   reluctant even to admit that any such incident had   taken place which is likely to reflect on her chastity.   She would also be conscious of the danger of being   ostracised by the society. It would indeed be difficult   for  her  to  survive  in  Indian  society  which  is,  of   course,  not  as  forward-looking  as  the  western   countries are.”

18.       Much reliance has been placed  by learned counsel for the  

appellants on the judgment of this Court in Javed Masood & Anr.  

v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held  

that in case the prosecution witness makes a statement and is not  

declared hostile, he is supposed to speak the truth and his statement  

is to be believed.   

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It is in view of this fact in the instant case that Puran Singh,  

I.O. (PW.15) has deposed in the court that the “birth certificate of  

the prosecutrix did not relate to the prosecutrix.   I  did not verify  

about the birth certificate from the NDMC.  I do not remember if at  

the time of bail application I had submitted that the birth certificate  

is genuine but does not relate to prosecutrix.”   

19. Thus, the question does arise as to what extent the court is  

under  an  obligation  to  accept  the  statement  of  Puran  Singh,  I.O.  

(PW.15) particularly in view of the birth certificate available on the  

record. In view of our finding in respect of the date of birth we are of  

the  view that  Puran  Singh,  I.O.   (PW.15)  unfortunately  made  an  

attempt to help the accused/appellants, though in the examination-in-

chief the witness has deposed that the Birth Certificate providing the  

date of birth as 2.9.1974 was genuine.  

             Be that as it may, by now Puran Singh (PW.15) might have  

retired as the incident itself occurred 22 years ago. Therefore, we do  

not want to say anything further in respect of his conduct.

20.        In State of Karnataka v. K. Yarappa Reddy, AIR 2000  

SC 185, this Court while dealing with a similar issue held:  

“It  is  well-nigh  settled  that  even  if  the   investigation is illegal or even suspicious the rest   of the evidence must be scrutinized independently   

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of  the  impact  of  it.  Otherwise  the  criminal  trial   will  plummet  to  the  level  of  the  investigating   officers  ruling  the  roost.  The  court  must  have   predominance and pre-eminence in criminal trials   over  the  action  taken  by  investigating  officers.   Criminal justice should not be made a casualty for   the wrongs committed by the investigating officers   in  the  case.  In  other  words,  if  the  court  is   convinced that  the testimony of  a witness  to  the   occurrence  is  true  the  court  is  free  to  act  on it   albeit the investigating officer's suspicious role in   the case.”

21.        The investigation into a criminal offence must be free from  

all objectionable features or infirmities which may legitimately lead  

to a grievance to either of the parties that the investigation was unfair  

or had been carried out with an ulterior motive which had an adverse  

impact on the case of either of the parties. Investigating Officer is  

supposed to investigate an offence avoiding any kind of mischief or  

harassment to either of the party. He has to be fair and conscious so  

as to rule out any possibility of bias or impartial conduct so that any  

kind of suspicion to his conduct may be dispelled and the ethical  

conduct is absolutely essential for investigative professionalism. The  

investigating officer “is not merely to bolster up a prosecution case  

with such evidence as may enable the court to record a conviction  

but  to  bring  out  the  real  unvarnished  truth.”  (Vide:  Jamuna  

Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of  

Bihar & Anr. etc.  etc.  v.  P.P. Sharma & Anr.,   AIR 1991 SC  

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1260; and  Babubhai v. State of Gujarat & Ors., (2010) 12 SCC  

254)

22.      Shri Amrendra Sharan, learned senior counsel has placed  

reliance on the judgment of this Court in  Baldev Singh & Ors. v.  

State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang  

rape had been sentenced to 10 years RI and a fine of Rs.1000/- each  

had been imposed and served about more than 3 years imprisonment  

and  incident  had  been  very  old,  this  Court  in  the  facts  and  

circumstances  of  the  case  reduced  the  sentence  as  undergone,  

directing the appellants therein to pay a sum of Rs.50,000/- of fine to  

be paid to the victim and prayed for some relief.  

23.   The  High  Court  after  taking  into  consideration  all  the  

circumstances  including that  the  incident  took place  in  1989;  the  

appeal before it was pending for more than 10 years;  the prosecutrix  

had willingly accompanied the appellants to Meerut and stayed with  

them in the hotel; and  she was more than 15 years of age when she  

eloped  with  the  appellants  and  the  appellants  were  young  boys,  

reduced the sentence to 5 years which was less than the minimum  

prescribed sentence for the offence.  As the High Court itself has  

awarded the sentence less than the minimum sentence prescribed for  

the offence recording special reasons, we do not think it to be a fit  

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case to reduce the sentence further in a proved case of rape of a  

minor.

        The appeals lack merit and are, accordingly, dismissed.   

…………………………….J.  (P. SATHASIVAM)

              ………………………..…….J.

New Delhi,  (Dr. B.S. CHAUHAN) October 10, 2011

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