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Crl.A. No. 1114 of 2011                                                  1

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

    CRIMINAL APPEAL NO. 1114 of 2011

MUKESH                                ……APPELLANT

VERSUS

STATE OF CHHATTISGARH       …RESPONDENT

J U D G M E N T

V. GOPALA GOWDA, J.

This  appeal  is  directed  against  the  final  

judgment and order dated 10.08.2010, passed by the  

High Court of Chhattisgarh at Bilaspur, in Criminal  

Appeal No.342 of 1996 dismissing the appeal of the  

appellant and upholding the conviction and sentence  

passed by the Trial Court in Sessions Trial No. 79  

NON REPORTABLE

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of 1995, whereby the appellant was found guilty for  

the offence punishable under Section 376 of IPC and  

was sentenced to undergo rigorous imprisonment for  

seven years with a fine of Rs.500/- and in default,  

to undergo further simple imprisonment for 5 months.  

2. For the purpose of considering the rival legal  

contentions urged in this appeal and with a view to  

find out whether this Court is required to interfere  

with the impugned judgment of the High Court, the  

necessary facts are briefly stated hereunder:

  On 18.4.1994, at about 12.00 to 12.30 a.m. at  

night, the prosecutrix, Kumari Bai, had come out of  

her  house  to  answer  the  call  of  nature  near  the  

mango tree in the courtyard, and the accused came  

from behind and caught hold of her hands and started  

dragging her in a bid to commit sexual intercourse  

with her. When she tried to run away in order to get  

out of his clutches, he again caught hold of her  

hair and threw her on the ground and caught hold of  

her  legs,  as  a  result  of  which  the  prosecutrix

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suffered injuries on the right side of her forehead.  

When the prosecutrix tried to shout, he inserted a  

piece of cloth (scarf) into her mouth to stifle her  

cries  for  help  and  committed  forcible  sexual  

intercourse with her. It is alleged that after the  

commission of the offence, the accused ran away and  

she went back to her house and informed about the  

incident  to  her  sister-in-law,  brother-in-law  and  

other  family  members.  The  FIR  was  lodged  with  

Bilaspur, Police Station, Chakarbhata. The case went  

for trial to the Trial Court.

 As  many  as  12  prosecution  witnesses  were  

examined by the prosecution before the Trial Court  

in support of the case. The statement of the accused  

was also recorded under Section 313 of Cr.P.C. in  

which he denied the charges levelled against him and  

pleaded  innocence  and  further  stated  that  he  has  

been falsely implicated in the case and therefore,  

he  prayed  for  acquittal  from  the  charge  framed  

against him.

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  After  hearing  the  learned  counsel  for  the  

parties, the Trial Court by its judgment and order  

dated 15.02.1996 in Sessions Trial No. 79 of 1995,  

convicted  and  sentenced  the  appellant  for  the  

offence under Section 376 of the IPC.

3.  On appeal, the High Court after going through  

the  evidence  on  record  and  the  statement  of  the  

witnesses  held  that  though,  there  appears  to  be  

minor  contradictions  in  the  statement  of  the  

prosecutrix with respect to the timing of lodging  

the FIR, but considering her entire statement, it is  

held that the same is rendered insignificant. Thus,  

the factual aspect of the matter does not lead the  

court to disbelieve the testimony of the prosecutrix  

which has already been supported by other witnesses.  

The appeal was thus dismissed on the ground that it  

was without substance. Hence, this appeal.

4. It is the contention of the learned counsel for  

the  accused/appellant  that  the  story  of  the  

prosecutrix is absolutely marred by contradictions

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and omissions. Further, there was a delay in lodging  

the FIR and contradictions regarding the date of the  

incident. Hence, it is contended that there was no  

rape committed by the accused as alleged and he is  

innocent of the charge.

5. The learned counsel for the appellant has further  

contended that prima facie, it is a case of consent  

given by the prosecutrix, otherwise, it would not  

have  been  possible  for  the  appellant  to  commit  

sexual intercourse with her, in the middle of the  

night as he was not aware that the prosecutrix would  

come out of her house in the middle of the night and  

he would get an opportunity to have intercourse with  

her and therefore, he has been falsely implicated.

6. It was further contended by the learned counsel  

on behalf of the appellant that the medical report  

pleaded by the prosecution, does not support their  

case because neither internal nor external injuries  

were found on the private parts or the body of the

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prosecutrix by the doctor who had medically examined  

her, except for the scratch mark on her forehead.

7.  It  is  further  contended  that  the  date  of  the  

incident  in  the  FIR  has  been  overwritten  and  

manipulated,  whereas  as  per  the  charge  sheet  the  

incident occurred on 18.04.1994, however, from the  

evidence  of  the  prosecutrix  and  the  other  

prosecution witnesses, it appears that the incident  

had occurred on the intervening night of the 16th and  

17th of April 1994, hence the accused is entitled to  

the benefit of doubt and should be acquitted from  

the charge.

8.  It  is  further  contended  that  the  case  of  the  

prosecution  is  highly  improbable  and  full  of  

omissions and contradictions as the prosecutrix did  

not  raise  any  alarm  or  cried  for  help  when  the  

accused/appellant  caught  hold  of  her  hand  and  

further she did not even raise her voice, when she  

had freed herself from the clutches of the accused

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and ran towards the house to be again caught by the  

appellant.

  Further the statements of PW-3, PW-8 and PW-11  

cannot  be  relied  upon  as  there  are  material  

omissions and contradictions in their statements.

9.  It is further contended that even for the sake  

of  argument,  if  the  story  of  the  prosecution  is  

believed to be true, even then it is clear from the  

facts  and  circumstances  of  the  case  that  the  

intercourse, if any, is consensual in nature.

10.  On  the  other  hand,  it  is  contended  by  the  

prosecution that the case of the prosecutrix is true  

and strong as the complaint was lodged by her very  

promptly and the witnesses namely, Pardeshi, PW-3  

and  Bahra  Bai,  PW-4,  to  whom  the  prosecutrix  

narrated the incident, have also supported the case  

of the prosecution.  

11. It has been further contended on behalf of the  

prosecution  that  the  medical  report  of  the

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prosecutrix (Ex.P.4), very much makes it clear that  

she had suffered external injuries on her forehead.  

Further, there is absolutely no evidence available  

on  record  to  show  that  the  prosecutrix  was  a  

consenting  party  as  alleged  by  the  

accused/appellant.  He  has  further  not  stated  

anything to this effect in his statement recorded  

under Section 313, Cr.P.C.

12.  On  the  basis  of  the  aforesaid  rival  legal  

contentions, evidence of the prosecution witnesses  

on record and the reasons assigned by the courts  

below,  the  following  points  would  arise  for  

consideration of this Court:

1.Whether the High Court should have given the  benefit of doubt to the appellant based on the  contradictions  regarding  the  date  of  the  incident,  the  FIR,  charge  sheet  and  the  statements  of  the  prosecutrix  and  the  prosecution witnesses?

2. What order?

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REASONS

Answer to Point No. 1 13. To answer the first point, it is necessary for  us to consider the following evidence:

a) The direct evidence of the prosecutrix.

b) Evidence of the witnesses and the medical  evidence.

c) Circumstantial evidence on record.  

  We have perused the evidence of the prosecutrix  

on record. In her deposition she has clearly stated  

that the accused had come from behind and caught  

hold of her and closed her mouth with his hand  and  

when the prosecutrix tried to run away, he again  

caught  hold  of  her  and  pulled  her  down,  thereby  

committed rape on her. Thereafter, the accused ran  

away and the prosecutrix narrated the incident to  

her  sister-in-law,  Bahorabai,  and  other  family  

members,  immediately  after  the  incident.  The  

corroboration  of  this  fact  is  also  found  in  the

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statements  of  the  prosecution  witnesses  PW-3  and  

PW-11.

14. Further, the accused has taken the defence that  

the prosecutrix did not call out for help, despite  

the  fact  that  she  had  managed  to  free  herself.  

However, we hold that, in the situation, where the  

prosecutrix was under the threat of being raped by  

the appellant/accused, we cannot expect her to be  

prudent  and  meticulous  in  her  thought  process.  

Hence, for her running away from the situation would  

have been the best possible thing to do at the time,  

therefore, not calling out for help does not mean  

that  the  appellant/accused  did  not  commit  the  

offence. The state of mind of the prosecutrix cannot  

be precisely analysed on the basis of speculation  

because  each  person  reacts  differently  to  a  

particular stressful situation.

15. Further, as has been repeatedly held by this  

Court in a catena of cases, the sole testimony of  

the  witness  is  sufficient  to  establish  the

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commission  of  rape  even  in  the  absence  of  

corroborative evidence. Reliance has been placed on  

the  decision  of  this  Court  in  the  case  of  

Mohd. Iqbal v. State of Jharkhand1, which states as  

under :-  

“17. There is no prohibition in law  to convict the accused of rape on  the basis of sole testimony of the  prosecutrix  and  the  law  does  not  require  that  her  statement  be  corroborated  by  the  statements  of  other witnesses. 18. In Narender Kumar v. State (NCT  of Delhi) this Court has observed  that  even  if  a  woman  is  of  easy  virtues  or  used  to  sexual  intercourse, it cannot be a licence  for any person to commit rape and  it further held: (SCC p. 180, paras  30-31)

“30.  …  conviction  can  be  based on sole testimony of  the  prosecutrix  provided  it lends assurance of her  testimony.  However,  in  case the Court has reason  not to accept the version  of the prosecutrix on its  face  value,  it  may  look  for corroboration. In case  

1

(2013) 14 SCC 481

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the  evidence  is  read  in  its totality and the story  projected  by  the  prosecutrix is found to be  improbable,  the  prosecutrix’s case becomes  liable to be rejected. 31.  The  Court  must  act  with  sensitivity  and  appreciate the evidence in  totality of the background  of the entire case and not  in the isolation. Even if  the prosecutrix is of easy  virtues/unchaste  woman  that  itself  cannot  be  a  determinative  factor  and  the  Court  is  required  to  adjudicate  whether  the  accused committed rape on  the  prosecutrix  on  the  occasion complained of.”

19. In  the  statements  of  the  appellant-accused under Section 313  CrPC,  only  a  bald  statement  had  been  made  by  both  the  appellant- accused that they were innocent. No  explanation  had  been  furnished  by  either  of  them  as  to  why  the  prosecutrix  had  deposed  against  them  and  involved  them  in  such  a  heinous crime.”

16. Further, the evidence of the witnesses including  

the evidence of the medical report, makes it amply  

clear that the prosecution has firmly established

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the incident of rape. None of the witnesses in their  

deposition  have  deviated  from  their  version.  The  

fact that the prosecutrix narrated the incident of  

rape  immediately  to  her  family  members  after  its  

commission is corroborated by the statements of PW-3  

and  PW-11.  The  fact  that  the  prosecutrix  had  

sustained injury on her forehead on the night of the  

incident is also verified by the statements of PW-3,  

PW-11 and her husband Alakhram (PW-10), who was not  

present in the village on the night of the incident,  

but had rushed back immediately in the evening on  

hearing about the rape. This fact is also proved  

from the evidence of PW-3.

17. Further, the untenable contention of the accused  

that he has been falsely implicated in the present  

case  because  he  had  seen  the  prosecutrix  in  a  

compromising  position  with  her  brother-in-law,  is  

baseless and false and cannot be accepted by this  

Court. The witnesses, PW-3, who is the wife of the  

brother-in-law  and  PW-10,  the  husband  of  the

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prosecutrix, respectively, have specifically denied  

the  allegation  made  by  the  accused  against  the  

prosecutrix in their evidence. Thus, the defence has  

failed  to  satisfy  this  Court  with  substantive  

evidence  to  prove  the  allegation  against  the  

prosecutrix.

18. So far as the Medical Report is concerned, Dr.  

(Smt.)Samdariya (PW-4), who has medically examined  

the prosecutrix has stated that she had observed a  

scratch mark on her forehead, that was 10 x ¼ c.m.  in  size  and  had  further  opined  that  since  the  

prosecutrix was a married lady, no definite opinion  

regarding  rape  could  be  given.  However,  in  our  opinion, the absence of a conclusive opinion of the  

medical examiner regarding rape in case of a married  

woman,  cannot  be  a  ground  for  acquittal  of  the  

accused,  having  regard  to  the  positive  and  

substantive  evidence  of  the  prosecutrix  and  the

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other prosecution witnesses. In the case of State of  

U.P. v. Chhotey Lal2, this Court held as under:-

“32. Although the lady doctor, PW  5 did not find any injury on the  external or internal part of the  body of the prosecutrix and opined  that the prosecutrix was habitual  to  sexual  intercourse,  we  are  afraid  that  does  not  make  the  testimony  of  the  prosecutrix  unreliable. The fact of the matter  is  that  the  prosecutrix  was  recovered  almost  after  three  weeks.  Obviously  the  sign  of  forcible  intercourse  would  not  persist for that long a period. It  is  wrong  to  assume  that  in  all  cases  of  intercourse  with  the  women  against  will  or  without  consent,  there  would  be  some  injury on the external or internal  parts  of  the  victim. The  prosecutrix  has  clearly  deposed  that she was not in a position to  put  up  any  struggle  as  she  was  taken away from her village by two  adult  males.  The  absence  of  injuries  on  the  person  of  the  prosecutrix  is  not  sufficient  to  discredit her evidence; she was a  helpless victim. She did not and  could  not  inform  the  neighbours  where she was kept due to fear.”

(emphasis supplied) 2

(2011) 2 SCC 550

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19. Further,  the external injury on the forehead  of the prosecutrix cannot be disregarded. The fact  

that the prosecutrix was bleeding at the time of  

narrating  the  incident  has  been  categorically  

stated in the evidence of PW-3, PW-11 and PW-12  

and  in  the  FIR.  The  medical  examination  of  the  

prosecutrix  was  not  conducted  just  after  the  

incident. In such a situation, it is not possible  

to get a clear and certain opinion with regard to  

the commission of rape. Thus, the version of the  

incident  narrated  by  the  prosecutrix  and  the  

injury on the forehead has been duly corroborated  

by the medical evidence on record.

20.  Now,  we  come  to  the  part  of  circumstantial  

evidence.  The  most  important  fact,  that  the  

prosecutrix had  narrated  the  incident  of  rape  

immediately  after  its  commission,  gives  us  a  

strong  reason  to  believe  the  version  of  the  

prosecution.  Further,  the  conduct  of  the  other  

witnesses including that of her husband is very

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natural. The evidence of PW-12, Ram Khilawan, who  

is the neighbour of the accused and as such has  

neither  any  enmity  with  the  accused  nor  was  he  

friend with Alakhram and others has also supported  

the case of the prosecution. Further, Nem Prasad  

Tondon, PW-1, is the Patwari who prepared the spot  

map  and  Devi  Das,  PW-2  have  also  supported  the  

case of the prosecution. Further, Dr. V.D.Sonwani,  

PW-5, who had medically examined the accused, has  

stated  in  his  report  at  Ex.P-6,  that  he  was  

capable of having sex. Further, from the place of  

occurrence, broken bangles of the prosecutrix were  

recovered and seizure memo Ex.P-2, was prepared in  

this respect.  

21. Further, the delay in lodging the FIR has been  

well  explained  by  the  prosecution  and  thus,  it  

cannot be considered a ground for acquittal of the  

accused.  It  is  clear  from  the  facts  and  

circumstances  of  the  case  that  the  prosecutrix,  

being a married lady, could not have lodged the

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FIR  on  her  own,  especially  in  case  of  Indian  

circumstances. As stated in the facts on record,  

her husband was not in the village and returned on  

the  following  evening  of  the  incident.  Further,  

the incidence had occurred late in the night and  

there was no elder person of the family present to  

go to the Police Station and lodge the complaint  

regarding the incident. Hence, it is natural for  

her to wait for her husband to return. This fact  

is verified by the statements of PW-11 and PW-2.  

Further, the distance of the police station from  

the  place  of  residence  is  shown  to  be  20  k.m.  

Thus,  the  conduct  of  the  prosecutrix  and  the  

witnesses was natural and logical and the accused  

cannot get the benefit of delay in the filing of  

complaint. In this regard reliance has been placed  

on the decision of this Court in the case of Sri  

Narayan Saha v. State of Tripura3, which states as  

under:-

3

(2004) 7 SCC 775

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“5.We wish to first deal with the  plea  relating  to  the  delayed  lodging of the FIR. As held in a  large number of cases, mere delay  in lodging the FIR is really of no  consequence,  if  the  reason  is  explained.  In  the  instant  case,  the evidence of PW 3, the victim  and  that  of  her  husband,  PW  4,  clearly  shows  that  there  was  initial  reluctance  to  report  the  matter to the police by PW 4. He,  in  fact,  had  taken  his  wife  to  task  for  the  incident  and  had  slapped  her.  In    Karnel  Singh   v.    State of M.P.   it was observed that    a woman who was a victim of sexual  violence, is not an accomplice to  the  crime  but  is  a  victim  of  another  person’s  lust  and,  therefore,  her  evidence  need  not  be tested with the same amount of  suspicion  as  that  of  a  culprit.  Therefore,  the  rule  of  prudence  that  her  evidence  must  be  corroborated  in  material  particulars,  has  no  application.  At  the  most,  the  Court  may  look  for  some  evidence  which  lends  assurance.

 XXX XXX XXX 10. There was no reason as to why  a  woman,  more  particularly  a  married  woman,  would  falsely  implicate the two accused persons.  Minor  discrepancies  in  the  testimony  of  PWs  3  and  4  were  sought  to  be  highlighted.  Taking

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into  account  the  fact  that  the  evidence  was  recorded  in  Court  after  about  seven  years  of  the  occurrence,  these  have  been  rightly  held  to  be  of  no  consequence  by  both  the  Trial  Court and the High Court.”

(emphasis supplied)

Further,  in  the  case  of  State  of  Rajasthan  v.  

N.K.4, the accused, this Court has held as under:-

“14. It is true that the incident  dated  1-10-1993  was  reported  to  the  police  on  5-10-1993.  The  prosecutrix  was  a  married  woman.  Her muklana ceremony had not taken  place. Muklana ceremony is a rural  custom  prevalent  in  Rajasthan,  whereunder the bride is left with  the parents after marriage having  been performed and is taken away  by the husband and/or the in-laws  to  live  with  them  only  after  a  lapse of time. The origin of the  custom  owes  its  existence  to  performance  of  child-marriages  which are widely prevalent there.  The muklana was yet to take place.  The prosecutrix was a virgin prior  to the commission of the crime and  this fact finds support from the  medical  evidence.  The  parents  of  such a prosecutrix would obviously  

4

(2000) 5 SCC 30

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be  chary  to  such  an  incident  gaining publicity because it would  have serious implications for the  reputation of the family and also  on the married life of the victim.  The husband and the in-laws having  become aware of the incident may  even refuse to carry the girl to  reside with them. The incident if  publicised may have been an end to  the  marriage  of  the  prosecutrix.  Added  to  this  is  the  communal  tinge which was sought to be given  by the community of the  accused.  PW  10,  the  father  of  the  prosecutrix, the prosecutrix, PW 2  and  other  witnesses  have  stated  that while they were about to move  to  the  police  station  they  were  prevented  from  doing  so  by  the  community  fellows  of  the  accused  who persuaded them not to lodge a  report with the police and instead  to  have  the  matter  settled  by  convening  a  panchayat of  the  village  people.  After  all  the  family of the victim had to live  in  the  village  in  spite  of  the  incident  having  taken  place.  The  explanation  is  not  an  afterthought.  An  indication  thereof is to be found in the FIR  itself  where  the  complainant  has  stated — “the delay in lodging the  report  is  due  to  village  panchayat,  insult  and  social  disrepute”.  Nothing  has  been  brought  out  in  the  cross- examination  of  the  witnesses  to

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doubt the truth and reasonableness  of the explanation so offered. 15. We  may  however  state  that  a  mere  delay  in  lodging  the  FIR  cannot be a ground by itself for  throwing  the  entire  prosecution  case overboard. The Court has to  seek an explanation for delay and  test  the  truthfulness  and  plausibility  of  the  reason  assigned.  If  the  delay  is  explained  to  the  satisfaction  of  the  Court  it  cannot  be  counted  against the prosecution. In  State  of Rajasthan v. Narayan this Court  observed: (SCC p. 623, para 6)

“True  it  is  that  the  complaint  was  lodged  two  days  later  but  as  stated  earlier Indian society being  what  it  is  the  victims  of  such  a  crime  ordinarily  consult  relatives  and  are  hesitant  to  approach  the  police since it involves the  question  of  morality  and  chastity of a married woman.  A  woman  and  her  relatives  have  to  struggle  with  several  situations  before  deciding  to  approach  the  police….”

16. In  State of Punjab v.  Gurmeet  Singh this Court has held: (SCC p.  394, para 8)

“The Courts cannot overlook  the  fact  that  in  sexual  offences  delay  in  the

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lodging of the FIR can be  due  to  variety  of  reasons  particularly the reluctance  of  the  prosecutrix  or  her  family members to go to the  police  and  complain  about  the incident which concerns  the  reputation  of  the  prosecutrix  and  the  honour  of her family. It is only  after  giving  it  a  cool  thought that a complaint of  sexual offence is generally  lodged. ”

17. So are the observations made by  this Court in Karnel Singh v. State  of  M.P. repelling  the  defence  contention  based  on  delay  in  lodging  the  FIR.  In  the  present  case, in our opinion the delay in  lodging  the  FIR  has  been  satisfactorily explained.”

(emphasis supplied)

22.  With  regard  to  the  alleged  discrepancy  

regarding  the  date  of  the  occurrence  of  the  

incident is also disregarded by this Court in the  

light of the facts and circumstance of the case.  

The evidence on record is sufficient to affirm the  

guilt of the accused on the charge framed against  

him. Hence,  the  accused  is  not  entitled  to  the

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benefit  of  doubt  as  pleaded  by  him  before  this  

Court.

23. Thus, after considering the entirety of the  

case, we do not see any cogent reason to interfere  

with the findings of fact recorded by the courts  

below. The appeal lacks merit and is, accordingly,  

dismissed.

                      …………………………………………………………………J.        [V.GOPALA GOWDA]

                      …………………………………………………………………J.       [ADARSH KUMAR GOEL]

New Delhi,                                     September 25, 2014