REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 91 OF 2007

PREM PRAKASH @ LILLU & ANR.      … Appellants

Versus

STATE OF HARYANA       … Respondent

J U D G M E N T

Swatanter Kumar, J.

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Three  accused,  namely  Dharambir  @  Pappu,  Prem  

Prakash @ Lillu and Herchand @ Poley, were charged for an  

offence punishable under Sections 366 and 376(2)(g)  of the  

Indian Penal Code, 1860 (in short the ‘IPC’).  Upon trial, the  

learned Additional Sessions Judge, Rohtak, by judgment and  

order dated 31st July, 1992 held all the three accused guilty  

of  the  offences  of  kidnapping  and  gang  rape  of  Kumari  

Sudesh and, thus, they were sentenced to undergo rigorous  

imprisonment of 10 years with a fine of Rs.500/- each.  In  

case  of  default  of  payment  of  fine,  they  were  ordered  to  

undergo rigorous imprisonment  for  a  further  period of  one  

month.  The accused were also awarded two years’ rigorous  

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imprisonment each for the offence committed under Section  

366 of the IPC. Both the substantial sentences were ordered  

to run concurrently.  Dissatisfied with the judgment of the  

trial court, the accused preferred an appeal before the High  

Court.   The High Court  found no merit  in the appeal  and  

consequently,  dismissed  the  same vide  its  judgment  dated  

27th July, 2005, giving rise to the present appeal by all the  

accused.    

The learned counsel for the appellants pointed out that  

during the pendency of the appeal before this Court, one of  

the  accused,  i.e.,  Prem  Prakash  @  Lillu  had  expired  and  

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therefore,  the  present  appeal  survives  only  qua  the  third  

accused, i.e. Herchand @ Poley.  In so far as the appeal by the  

accused  Dharambir  @  Pappu  is  concerned,  the  same  was  

dismissed  in limine.  The brief facts in the present case are  

that the aforesaid three accused were asked to face trial on  

the aforestated charges based on the case of the prosecution.  

According  to  the  prosecution,  Kumari  Sudesh,  daughter  of  

Pratap Singh, resident of Village Chhuchhak accompanied by  

her brother Satish, aged about 5 years, had gone out of her  

house at about 8-9 p.m. on 25th July, 1990 to ease herself at  

a distance of about two or three killas away from their house  

and by the side of a nearby pucca road.  After she answered  

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the call of nature and washed herself a car approached her  

from behind and stopped beside her.  The accused Dharambir  

got  down  and  took  her  in  his  arms.   The  accused  Poley  

followed him and gagged her mouth with his hand.  She was  

lifted and dragged into the car.  The car was being driven by  

the  accused  Lillu.   The  car  was  taken  beyond  the  village  

abadi, across a petrol pump and into the fields by the side of  

the road.  All the three accused raped Kumari Sudesh one by  

one in that field.  Accused Dharambir was left there and the  

other  two  took  the  prosecutrix  in  the  car  to  an  unknown  

jungle  and kept  her  there  for  that  night  and the  following  

afternoon.  She was again raped by these two accused in that  

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jungle.   At  about  4.00  p.m.  on  26th July,  1990,  she  was  

dropped on the bridge of a canal, at a distance of about one  

kilometer  from  her  house  and  was  threatened  of  being  

kidnapped, raped and killed if she narrated the occurrence to  

anybody.  She reached home and recounted the incident to  

her  father  Pratap.   A  panchayat of  the  brotherhood  was  

convened but no decision was arrived at.  On the next day,  

the father of the prosecutrix went to the Police Station Beri  

with her,  to  lodge a complaint.   However,  their  request  for  

registration  of  a  case  was  not  entertained.   On  27th July,  

1990, they went to Jhajjar Sub Divisional Headquarter and  

approached the  Deputy Superintendent  of  Police  but  to no  

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avail.   Thereafter,  they  approached  the  Sub  Divisional  

Magistrate  (in  short  the  ‘SDM’)  with  a  written  application  

dated  28th July,  1990,  Ex.PE/1,  to  get  the  prosecutrix  

medically examined and for taking action against the culprits.  

The SDM referred the matter to the incharge of the hospital at  

Jhajjar  and a lady doctor,  Dr.  A.K.  Bhutani,  examined the  

prosecutrix and prepared her report, Ex.PE.  The clothes of  

the prosecutrix were also taken by the doctor, who later on  

handed over the same to the police, who in turn transferred  

them for  examination  by  the  PSL.   It  is  stated  that  while  

Pratap Singh was again going towards the police station, on  

the way at the bus stand of Village Jahagarh, he met a police  

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party and Assistant Sub Inspector Hawa Singh recorded his  

statement, Ex.PO/1 and an F.I.R., Ex.PO/2 dated 28th July,  

1990, was registered.

In  brief,  the  prosecution  had  examined  a  number  of  

witnesses  including  PW1,  Dr.   R.B.S.  Jakhar,  who  had  

medically examined the accused Dharambir and had opined  

that he was fit to commit sexual intercourse.  PW2 was the  

police officer incharge of the Police Station and he presented  

the original  challan before the Court.   The prosecutrix was  

examined as PW4 and her father Pratap Singh was examined  

as PW7.  Besides this, the lady doctor who had examined the  

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prosecutrix, was PW5, Dr. A.P. Sharma, who had medically  

examined the other two appellants was PW6, SI Hawa Singh,  

who was the Investigating Officer was examined as PW8.   The  

prosecution,  on  the  basis  of  these  witnesses  attempted  to  

bring home the guilt of the accused.   

In the statements made under Section 313 of the Code  

of Criminal Procedure, (for short ‘Cr.P.C.’), the accused Prem  

Prakash and Herchand stated that all witnesses were false.  

They denied the incident in its entirety and took a specific  

stand  that  Pratap  Singh,  father  of  Kumari  Sudesh  was  

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carrying on cultivation on the land belonging to the family of  

the accused and since he had stopped them from carrying on  

the  agricultural  activity,  Pratap  Singh  had  developed  

animosity towards them.

However,  in  his  statement  under  Section  313  of  the  

Cr.P.C., the accused Dharambir offered no explanation and  

also chose not to lead any defence.  The trial court vide its  

detailed judgment found that the accused were guilty of the  

offence  with  which  they  were  charged.   The  accused  had  

further raised a defence on behalf of Prem Prakash, that he  

was not named in the FIR and has been falsely implicated.  It  

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was also contended that the prosecutrix was more than 19  

years of  age and in fact  there was no reliable  evidence to  

convict  the  accused  and  there  were  contradictions  in  the  

case of the prosecution.  The trial court dealt with these two  

issues as follows: -

“23. Then I  have been pointed out some  points of contradictions in the statements  of  the  witnesses.   The  first  point  of  contradiction is as to who was driving the  car.  In the F.I.R. which was recorded on  the  basis  of  statement  of  Partap,  it  is  stated  that  Poley  was  driving  the  car.  Otherwise  both  the  father  and  the  daughter are consistent in stating that it  was  the  third  accused  (Lilu)  who  was  driving the said car.  The police had not  

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been co-operating with the prosecutrix.  It  has been discussed above.  Hence may be  that  the  police  deliberately  recorded  wrongly that Poley,  in place of  Lilu,  was  driving the car.  Otherwise too, the version  given by Partap, was given to him by the  prosecutrix, and may be that on this point  Partap  made  wrong  statement.   This  contradiction  cannot  affect  the  merits  of  the  case.   The  second  point  of  contradiction is with regard to the timing  

of the kidnapping.  P.W.4 Smt. Sudesh in  the  court  stated  that  she  had  been  kidnapped  at  about  8.00/9.00  A.M.  and  otherwise  the  case  of  the  prosecution  throughout is that she was kidnapped at  8.00 or 9.00 P.M. If the prosecution story  is read as a whole and if the statement of  this witness is also read keeping in view to  the sequence of the happenings, it shall be  clear that she was kidnapped at 8.00 or  9.00 P.M. and not at 8.00/9.00 A.M.  It is  

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only a clerical or typical (sic) mistake that  the time has been written as A.M., in place  of P.M.  So, it is not a contradiction.  

XXX XXX XXX

31. On the basis of this medical evidence  it  has  been  argued  that  this  lady  was  habitual  to  sexual  intercourse  and since  there was no injury found on her private  part, so it may be held that it is a case of  

consent  and she  being  of  more  than 18  years  of  age  was  an  equal  party  to  the  sexual intercourse and, therefore, even if  it  assumed  that  the  accused  have  committed  sexual  intercourse  with  this  lady,  they  cannot  be  said  to  have  committed  any  offence.   The  learned  counsel  for  the  accused  has  placed  reliance on Sukhjit Singh  vs.  The State of  Haryana, 1987 (i) R.C.R. 352.  That was a  case where two real brothers were alleged  

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to  have  committed  rape  on  a  lady.   No  injury  was  found  on  the  person  of  that  lady.  It was reported that she was used to  sexual  intercourse.   It  was  held  that  probably it was a case of consent.

XXX XXX XXX

39. Lastly argument has been advanced  on  behalf  of  accused  Lilu.   He  was  not  named in  the  F.I.R.   How and when he  

came into picture 7 (sic).  The F.I.R. was  recorded on 28.7.90.  The police resorted  to  the  supplementary  statement  of  the  prosecutrix of her father just the next day,  i.e. 29.7.1990 and these statements were  to the effect that two accused, other than  Dharmabir, were innocent.  This way Lilu  was  not  arrested  by  the  police.   Two  months after, as stated by the prosecutrix,  she had identified him in the street when  she  was  coming  along  with  her  father.  

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Then her father had told that the name of  this accused was Lilu.  This way Lilu came  into picture in the case of the prosecution.  Since the police has submitted the challan  only against one person, so: Lilu could be  named only be(sic) the prosecutrix in the  court  itself.   It  cannot  be  said  that  Lilu  had not been identified so his name being  named in the court for the first time by the  prosecutrix would create any doubt in the  truthfulness  of  the  case  of  the  

complainant that Lilu was also one of the  persons who kidnapped and raped her.”

The  main argument  on behalf  of  the  appellant,  while  

challenging  the above  findings,  is  that  there  is  hardly  any  

evidence directly involving the accused Prem Prakash @ Lillu  

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in  the  commission  of  the  crime.   This  argument  does  not  

impress us.  Firstly, the prosecutrix when examined as PW4  

stated  in  Court  that  the  appellant  was  driving  the  car  in  

which  she  was  kidnapped  and  subsequently  taken  to  the  

jungle.  Her version is also supported by her father Pratap  

Singh, PW7, though, of course, Pratap Singh was not an eye-

witness to the occurrence.  There is no reason for this Court  

to  disbelieve  the  version  given  by  the  prosecutrix.   Some  

contradictions have been pointed out between the statements  

of  the  prosecution  witnesses.   The  trial  court  has  rightly  

observed  that  these  are  some  discrepancies  which,  viewed  

from any angle, are not significant.  It is also on record that  

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PW4  did  deny  some  portion  of  her  statement  Ex.DA,  

particularly, that she was raped in the car one after the other  

by  all  the  three  accused.   This  statement  does  not  find  

support from any of the prosecution witnesses or from the  

investigation  of  the  Investigating  Officer.   Thus,  this  

contradiction  does  not  render  the  statement  of  the  

prosecutrix unreliable or untrustworthy.  

Another important aspect of the case is that the accused  

Dharambir, in his statement under Section 313 of the Cr.P.C.  

has not chosen to say that none of the other two accused,  

namely, the appellant herein and the deceased Prem Prakash,  

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were present at the time of the occurrence or that they have  

been falsely implicated on account of some land dispute, as  

referred  to  by  the  other  two  accused  in  their  statements  

under Section 313 of the Cr.P.C.

As per the medical evidence of PW5, Dr. A.K. Bhutani,  

“abrasions which were brownish in colour with clothes, blood  

on right shin anteriorly, clotted dry blood sticking from the  

abrasions described above (sic) 3 cm. below right knee joint”  

were found on the person of the prosecutrix.  There was also  

abrasion on right side of cheek, 5 cm brownish in colour and  

the prosecutrix complained of pain on the right side of her  

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neck.  In her cross-examination, the duration of injury no.1  

was stated to be more than 24 hours and it was also stated  

that the injury no.1 could be result of a fall while the injury  

no. 2 cannot be self inflicted.  This medical evidence clearly  

shows  that  she  had  suffered  injuries  during  the  alleged  

incident and she was taken for medical examination by the  

Investigating Officer after expiry of 24 hours.  Dr.A.P. Sharma  

had  examined  the  appellant-accused  Herchand  and  found  

him fit to perform sexual intercourse.

    The doctor  also stated that  she  had conducted X-ray  

examination  of  Kumari  Sudesh  and  according  to  report,  

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Ex.P8, Sudesh was aged more than 18 years.  After examining  

the  forensic  reports,  Exs.PH  and  PJ,  from  the  Forensic  

Science Laboratory, the doctor also stated that there was a  

possibility of intercourse having taken place with Sudesh on  

25th July, 1990.  

There are certain significant averments which show the  

manner in which the offence was committed.  Firstly, she has  

stated  that  the  car  was  being  driven  by  Prem Prakash  @  

Lillu.  Secondly, that she was wearing same clothes at the  

time of her medical examination which she was wearing at  

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the  time  of  rape.   Her  salwar  was  blood-stained.   These  

clothes were taken into custody by the doctor herself, who  

subsequently  handed  over  the  same  to  the  investigating  

agency.  Similarly,  the father of the prosecutrix,  PW7, has  

specifically  stated  that  his  daughter  had  told  him  that  

Dharambir had caught hold of her and dragged her to the  

car,  her  mouth  was  gagged  by  Poley  and  still  there  was  

another person with small pox marks on his face who was  

driving the car.  About the identity of Lillu @ Prem Prakash,  

it is clear that PW7 had known him for the last 10 years as  

he had settled in the Village.  In other words, there could  

hardly  be  any  dispute  with  regard  to  the  identity  of  the  

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person  accused.   But  for  the  contribution  made  by  the  

present  accused,  who  was  driving  the  car  and had  taken  

away  the  prosecutrix  to  the  jungle/fields,  probably  the  

incident  could  have  been  avoided.   Thus,  it  is  clear  that  

involvement  of  the  present  accused  in  the  entire  chain  of  

events was material and as per the prosecutrix he had also  

raped  her.   According  to  the  doctor,  he  was  capable  of  

performing sexual intercourse.  This entire evidence and the  

attendant  circumstances  point  towards  the  guilt  of  the  

accused.   

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The  learned  counsel  appearing  for  the  appellant  had  

placed emphasis on the fact that the doctor had opined that  

the prosecutrix was accustomed to sexual intercourse and  

that there was no sign of fresh intercourse.  This argument  

has rightly been rejected by the High Court by noticing that  

there was no fresh intercourse but she had been subjected to  

intercourse  more  than  24  hours  ago.   The  doctor  had  

examined  her  on  27th July,  1990  while  the  incident  took  

place on 25th July, 1990.  Thus, the statement of the doctor  

has to be read and understood in that background and the  

doctor  also specifically  stated,  that there was a possibility  

that she was subjected to intercourse on 25th July, 1990.   

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The evidence,  essentially,  must be viewed collectively.  

The  statement  of  a  witness  must  be  read  as  a  whole.  

Reliance on a mere line in the statement of the witness, out  

of  context,  would  not  serve  the  ends  of  justice  and  the  

conclusion  of  the  Court  based  on  such  appreciation  of  

evidence could be faulted.  Another aspect of this case which  

has specifically not been noticed by the High Court, is that  

the prosecutrix and her father were made to run from pillar  

to post by the police authorities, before their case could be  

registered.  The prosecutrix, PW4, has specifically stated that  

report made by her father was not recorded by the police and  

the next day they went to Jhajjar along with her mother and  

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appeared before the police officers but again, no action was  

taken.  According to her, the application which she had given  

in the Tehsil office was thumb marked by her.  Pratap Singh,  

father of the prosecutrix, stated that he had even convened a  

panchayat  of  the  brotherhood  but  the  panchayat  having  

failed to arrive at a decision, he had proceeded to the police  

station  along  with  his  daughter  and  his  report  was  not  

recorded at the police station by the police.  He returned to  

the  village  and  again  went  to  the  Jhajjar  Sub  Divisions  

Headquarter  and  met  the  DSP  and  narrated  the  entire  

occurrence to him.  But still no action was taken and then  

they claim to have gone to the SDM, Jhajjar  and made a  

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complaint in writing.  Thereafter, his daughter was medically  

examined and subsequently, the case was registered.  This  

event certainly describes and points towards the apathy in  

the functioning of investigating agencies in heinous crimes,  

to which the complainant was subjected.  In terms of  the  

provisions  of  Section  154,  Cr.P.C.,  it  is  obligatory  for  the  

police  to  register  a  case  when  the  facts  constituting  a  

cognizable offence are brought to its notice.  The father of the  

girl, surely must have felt trauma and frustration when he  

was subjected to the above treatment, besides the knowledge  

of his daughter’s raped by the accused.  We do express a  

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pious hope,  that such occurrences will  not be repeated in  

any police station in the country.

The counsel for the appellant had also tried to rely upon  

some contradictions and embellishments in the statements of  

the  prosecutrix  and  her  father.   Reference  was  made  to  

exhibits D1 and PO in this regard.  The Court cannot ignore  

the fact that the prosecutrix cannot be expected to make a  

perfect statement after a lapse of time without even a normal  

variance.  Furthermore, she had specifically stated that, the  

statements recorded by the appellants were not read over to  

her nor were any thumb impressions taken for the same.  In  

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fact, she had given an application to the tehsil office which  

was thumb marked and even that complaint had not been  

produced in evidence  before  the  Court  by the  prosecution.  

These  are  the  lacunae  and  impropriety  committed  by  the  

investigating agency itself.  Thus, no burden or fault could be  

shifted to the prosecutrix.  Her statement before the Court is  

fully supported by other prosecution witnesses and even the  

-medical evidence produced on record.  There is a concurrent  

finding  of  conviction  against  the  accused,  which  is  based  

upon proper appreciation of evidence.  We see no reason to  

interfere.

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Consequently, the appeal is dismissed.

....................................J.        [Dr. B.S. Chauhan]

....................................J.

                           [Swatanter Kumar] New Delhi; July 7, 2011

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