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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1149 OF 2008

RAJESH PATEL  … APPELLANT  

Vs.

STATE OF JHARKHAND … RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

This criminal appeal is directed against the  

judgment of the High Court of Jharkhand at Ranchi  

passed  in  Criminal  Appeal  No.58  of  1999  dated  

14.11.2006 wherein it has confirmed the judgment  

and  order  passed  by  the  1st Additional  Sessions  

Judge,  Jamshedpur  in  S.T.No.168  of  1994/172  of  

1995. By the said judgment, the appellant herein

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was  convicted  under  Section  376,  I.P.C.  and  was  

sentenced to undergo rigorous imprisonment for a  

period of seven years.

2. The  prosecution  case  in  nutshell  is  stated  

hereunder for the purpose of appreciating the rival  

legal contentions urged in this appeal.

3. The  prosecutrix  in  this  case  has  made  a  

statement  before  the  police  at  Ghatsila  police  

station, stating that she has narrated the incident  

which took place on 14.2.1993 at 11.00 a.m. in the  

house of the appellant. She stated that she was  

working  as  a  nurse  in  the  Nursing  Home  of  Dr.  

Prabir Bhagat at Moubhandar in the jurisdiction of  

Ghatsila, East Singhbhum District.  The house of  

the appellant Rajesh, who appears to be a classmate  

of prosecutrix, is situated near the Nursing Home  

in which the prosecutrix was working as a nurse.  

It  is  the  case  of  the  prosecution  that  at  the  

request of the appellant she went to his house in  

order to get back her book from him. As soon as she  

entered the house of the appellant, he closed the

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door from inside. At that time the members of the  

appellant’s  family  were  not  present  inside  the  

house.  When the prosecutrix tried to raise alarm,  

she was terrorized by the appellant who threatened  

her that she would be killed by a knife if she  

raises alarm.  Thereafter, the appellant committed  

rape on her. When she felt pain on her private  

part, she wanted to cry but she was silenced by the  

appellant  by  displaying  a  knife  to  her.   After  

committing the offence of rape the appellant left  

the house and locked the door from outside.  After  

half an hour, one Purnendu Babu of Chundih came and  

unlocked the house and the prosecutrix returned to  

her house silently.  It is further the case of the  

prosecution that she went to her house and narrated  

the incident to her mother. However, the mother of  

the  prosecutrix  remained  silent  for  two  to  four  

days on the assurance of Mr. Purnendu Babu that he  

would take action in the matter. Additionally, it  

was  alleged  that  the  appellant  at  the  time  of  

committing  the  offence  had  also  threatened  the

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prosecutrix that she would be killed if she lodges  

a complaint against him.

4. The  trial  court  convicted  the  accused  and  

sentenced  him  to  undergo  imprisonment  of  seven  

years.  The correctness of the same was challenged  

before  the  High  Court  of  Jharkhand  by  filing  

Criminal Appeal No.58 of 1999 urging various legal  

contentions.  After  considering  the  legal  

contentions on behalf of the appellant, the High  

Court has affirmed the conviction and sentence of  

the  accused  and  dismissed  the  appeal.  The  

correctness  of  the  same  is  challenged  in  this  

appeal urging the following legal contentions: that  

the courts below have failed to appreciate that the  

sole testimony of the prosecutrix could not have  

been used against the appellant to hold him guilty  

of  offence  under  Section  376,  IPC;  that  the  

prosecution has not examined either the doctor who  

conducted  the  medical  examination  of  the  

prosecutrix  or  the  investigating  officer.

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Therefore,  the  finding  of  fact  holding  that  the  

appellant is guilty of the offence is erroneous in  

law and liable to be set aside.  Another ground  

urged by Mr.Sanjay Hegde, the learned counsel for  

the appellant, is that the courts below failed to  

appreciate  that  the  story  of  confinement  of  the  

prosecutrix in the house of the appellant cannot be  

sustained.  This  is  because  PW3  Purnendu  Babu,  a  

common friend of the appellant and the prosecutrix,  

who is alleged to have rescued the prosecutrix from  

the alleged confinement, did not support the same,  

thereby  breaking  the  chain  of  events  of  the  

prosecution story. Further, it is urged by him that  

the  courts  below  failed  to  note  the  delay  in  

lodging  the  FIR  which  has  not  been  adequately  

explained.   The  Courts  below  have  explained  the  

delay  in  filing  FIR  on  the  basis  of  the  

intervention of PW3 and PW4, namely, Purnendu Babu  

and the Doctor of the Nursing Home in which the  

prosecutrix was working, as they assured the victim  

to settle the matter between the parties. However,

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both  of  these  witnesses  were  declared  either  

tendered by the prosecution or hostile during the  

course  of  the  trial.   Further,  the  appellant  

contends that the learned courts below failed to  

take  into  consideration  of  the  serious  

contradiction in the version of the prosecutrix and  

her  mother.   The  prosecutrix  in  her  cross  

examination has stated that Dr. Prabir Bhagat – PW4  

was  in  his  chamber  in  the  evening  when  the  

appellant along with Purnendu Babu- PW3 went to the  

Nursing Home whereas the mother of the prosecutrix  

in her testimony has stated that the incident could  

not be reported to Dr.Prabir Bhagat on the date of  

the  occurrence  since  the  Doctor  was  in  TATA.  

According to the appellant, the courts below have  

ignored  the  contradiction  in  the  version  of  the  

prosecutrix. On one hand she says that she never  

met the appellant till 21.2.93, on the other hand  

she has stated that on the evening of the alleged  

occurrence, she met the appellant at the dispensary  

of Dr.Prabir Bhagat.  It was further contended by

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the appellant regarding the prosecution explanation  

that she could not raise alarm when the house was  

locked and offence was being committed on her as  

she was threatened by the appellant with a knife is  

improbable  to  believe  her  statement.  This  is  

because she could have raised an alarm when the  

appellant allegedly locked the prosecutrix inside  

the  house  for  half  an  hour  after  the  appellant  

committing offence of rape on her.  For all the  

abovementioned  grounds,  the  appellant’s  counsel  

contends that the conviction and sentence imposed  

upon the appellant cannot be allowed to sustain.   

5. Alternatively,  the  learned  counsel  contends  

that  if,  the  physical  relationship  between  the  

appellant and the prosecution is established, it  

was a case of consensual sex. Both of them were  

majors to enter into such alliance and they were  

classmates and familiar with each other as well as  

on visiting terms prior to the alleged occurrence  

of  offence.  Therefore,  the  appellant  has  not

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committed  offence  as  alleged.  On  the  issue  of  

sentencing, the learned counsel has relied upon the  

decision of this Court in the case of Ram Kumar v.  State of Haryana1, as the appellant in the present  case had already undergone the imprisonment of more  

than 1 year and 8 months and more than 20 years  

have elapsed from the date of commission of the  

offence and therefore the appeal may be allowed by  

passing appropriate order. The prosecutrix and the  

appellant are both married and settled in life and  

further the appellant is of a young age. Therefore,  

this  Court  may  exercise  its  power  by  recording  

special  and  adequate  reasons  as  provided  under  

proviso  to  Section  376,  IPC  and  the  sentence  

imposed  may  be  reduced  to  the  period  already  

undergone in judicial custody by the appellant and  

treat the same as imprisonment and relief may be  

granted to him to this extent as was observed in  

Ram Kumar case (Supra), if the case urged on behalf  of the appellant is not acceptable.     

1 (2006) 9 SCC 589

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6. On the other hand, the prosecution sought to  

justify the concurrent findings of fact recorded by  

the High Court and the Trial Court on the charge  

against  the  accused.  The  learned  counsel  for  

prosecution would contend that the Courts below,  

while accepting the testimony of the prosecutrix  

and  her  mother,  have  rightly  convicted  and  

sentenced the accused to undergo imprisonment for  

seven years and the same need not be interfered  

with by this Court in this appeal in exercise of  

its jurisdiction. Further, it is contended by the  

learned counsel that the judgment referred to supra  

by the appellant’s counsel is inapplicable to the  

facts situation of the present case and therefore,  

discretionary power of this court for reduction of  

the sentence need not be exercised and prayed for  

dismissal of this appeal.  

7. With  reference  to  the  aforesaid  rival  legal  

contentions urged on behalf of the parties, we have

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carefully  examined  the  case  to  find  out  as  to  

whether the impugned judgment warrants interference  

of this Court on the ground that the concurrent  

finding of fact by the High Court on the charge  

leveled against the appellant under Section 376,  

IPC,  and  the  finding  recorded  on  this  charge  

against the appellant on the basis of the evidence  

on record is erroneous in law and if so, whether it  

requires interference of this Court in exercise of  

its jurisdiction. The said points are answered in  

favour of the appellant by assigning the following  

reasons:

8. The prosecution case is that the appellant has  

committed the offence of rape on the prosecutrix on  

14.2.1993. She is the solitary witness to prove the  

charge.  The same is sought to be corroborated by  

her mother PW2 who has supported the prosecution  

case  on  the  basis  of  narration  of  the  alleged  

offence  by  the  prosecutrix  to  her.   It  is  an  

undisputed  fact  that  both  the  appellant  and  the

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prosecutrix  are  class-mates  and  had  good  

acquaintance  with  each  other  as  they  were  

exchanging books.  The case of the prosecution is  

that she had given her book to the appellant.  She  

asked him to return the same and he asked her to go  

to his house on 14.2.93 to take back the book.  

Accordingly,  she  went  to  the  house  of  the  

appellant. When she entered the house he locked the  

door of the house from inside.  At that time she  

has not raised an alarm, except stating that she  

insisted not to lock the door of the house as there  

were no other inmates in the house at that point of  

time.  The version of the prosecutrix is that she  

could  not  raise  alarm  as  the  appellant  has  

threatened  her  with  knife.  Further  case  of  the  

prosecution is that he had then committed offence  

of rape on her.  Further she has stated that while  

the appellant was committing rape on her she got  

pain in her private part at that point of time also  

she wanted to raise alarm, but he has shown the  

knife  to  her  not  to  raise  alarm.   Thus,  the

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prosecution story as narrated by the prosecutrix is  

most improbable and unnatural. This contention of  

the  appellant  is  further  supported  by  the  

contention  urged  on  his  behalf  that  after  the  

offence was committed, the appellant locked her in  

the house and went away from the house. After about  

half an hour Mr.Purnendu Babu –PW3, who is a common  

friend of both the appellant and the prosecutrix  

came there and unlocked the room till then she did  

not  raise  alarm  drawing  the  attention  of  the  

neighbours.  The  aforesaid  circumstance  would  

clearly go to show to come to the conclusion that  

the  case  of  the  prosecution  is  not  natural  and  

probable. Neither the prosecutrix nor the PW3 has  

informed  the  police  with  regard  to  the  alleged  

offence  said  to  have  committed  by  the  appellant  

after the prosecutrix was unlocked from the house.  

The reason given by the prosecution is that PW3 was  

making  sincere  efforts  to  bring  about  the  

settlement of marriage between the appellant and  

the prosecutrix. The same did not materialize and,

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therefore,  the  complaint  was  lodged  with  the  

jurisdictional police on 25.2.93. The above said  

version of PW1 regarding settlement between her and  

the appellant is not proved as PW3 has stated in  

his  evidence  that  he  does  not  know  anything  

regarding the alleged offence.     

9. Further, there is an inordinate delay of nearly  

11 days in lodging the FIR with the jurisdictional  

police. The explanation given by the prosecutrix in  

not  lodging  the  complaint  within  the  reasonable  

period after the alleged offence committed by the  

appellant  is  that  she  went  to  her  house  and  

narrated the offence committed by the appellant to  

her mother and on assurance of Purnendu Babu – PW3,  

the mother remained silent for two to four days on  

the  assurance  that  he  will  take  action  in  the  

matter.  Further,  the  explanation  given  by  the  

prosecutrix regarding the delay is that at the time  

of  commission  of  offence  the  appellant  had  

threatened  her  that  in  case  she  lodges  any

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complaint  against  him,  she  would  be  killed.  The  

said  explanation  is  once  again  not  a  tenable  

explanation. Further, the reason assigned by the  

High  Court  regarding  not  lodging  the  complaint  

immediately or within a reasonable period, it has  

observed  that  in  case  of  rape,  the  victim  girl  

hardly dares to go to the police station and make  

the matter open to all out of fear of stigma which  

will be attached with the girls who are ravished.  

Also, the reason assigned by the trial court which  

justifies  the  explanation  offered  by  the  

prosecution  regarding  the  delay  in  lodging  the  

complaint  against  the  appellant  has  been  

erroneously  accepted  by  the  High  Court  in  the  

impugned  judgment.  In  addition  to  that,  further  

observation made by the High Court regarding the  

delay is that the prosecutrix as well as her mother  

tried to get justice by interference of PW3, who is  

a common friend of both of them and PW4, the Doctor  

with whom the prosecutrix was working as a Nurse.  

When the same did not materialize, after lapse of

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11  days,  FIR  was  lodged  with  the  jurisdictional  

police for the offence said to have been committed  

by the appellant.  Further, the High Court has also  

proceeded to record the reason that prosecutrix had  

every  opportunity  to  give  different  date  of  

occurrence instead of 14.2.93 but she did not do it  

which reason is not tenable in law. Further, the  

High  Court  accepted  the  observation  made  by  the  

learned trial Judge wherein the explanation given  

by  the  prosecutrix  in  her  evidence  about  being  

terrorized to be killed by the appellant in case of  

reporting  the  matter  to  the  police,  is  wholly  

untenable in law.  The same is not only unnatural  

but  also  improbable.   Therefore,  the  inordinate  

delay of 11 days in lodging the FIR against the  

appellant is fatal to the prosecution case. This  

vital aspect regarding inordinate delay in lodging  

the  FIR  not  only  makes  the  prosecution  case  

improbable  to  accept  but  the  reasons  and  

observations made by the trial court as well as the  

High  Court  in  the  impugned  judgments  are  wholly

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untenable in law and the same cannot be accepted.  

Therefore, the findings and observations made by  

the courts below in accepting delay in lodging the  

FIR by assigning unsatisfactory reasons cannot be  

accepted by this Court as the findings and reasons  

are erroneous in law.

10. Further in the case in hand, PW3, who is a  

common friend of the appellant and the prosecutrix,  

according  to  the  prosecution  case,  he  has  

categorically stated that he does not know anything  

about the case for which he had received the notice  

from the court to depose in the case.  PW4 has  

stated  in  his  evidence  that  the  prosecutrix  was  

getting nursing training privately in his chamber  

for the last three years as on the date of his  

examination, namely, on 16.11.95.  He has stated in  

his examination-in-chief that on 14.2.93 when he  

opened  his  chamber  the  prosecutrix  came  to  his  

chamber and further stated that her mother did not  

tell him anything.  He has been treated as hostile  

by the prosecution, he was cross-examined by the

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prosecutor,  in  his  cross-examination  he  has  

categorically stated that he has told the police  

that he does not know anything about the incident.  

He has further stated that neither the prosecutrix  

nor  her  mother  told  him  about  the  incident  and  

further stated that he does not know anything about  

the case.

11. Further, neither the Doctor nor the I.O. has  

been examined before the trial court to prove the  

prosecution  case.   The  appellant  was  right  in  

bringing to the notice of the trial court as well  

as the High Court that the non-examination of the  

aforesaid two important witnesses in the case has  

prejudiced the case of the appellant for the reason  

that  if  the  doctor  would  have  been  examined  he  

could  have  elicited  evidence  about  any  injury  

sustained by the prosecutrix on her private part or  

any other part of her body and also the nature of  

hymen layer etc. so as to corroborate the story of  

the  prosecution  that  the  prosecutrix  suffered  

unbearable pain while the appellant committed rape

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on  her.  Non-examination  of  the  doctor  who  has  

examined her after 12 days of the occurrence has  

not  prejudiced  the  case  of  the  defence  for  the  

reason that the prosecutrix was examined after 12  

days of the offence alleged to have committed by  

the appellant because by that time the sign of rape  

must have disappeared.  Even if it was presumed  

that the hymen of the victim was found ruptured and  

no injury was found on her private part or any  

other part of her body, finding of such rupture of  

hymen may be for several reasons in the present age  

when the prosecutrix was a working girl and that  

she was not leading an idle life inside the four  

walls of her home.  The said reasoning assigned by  

the High Court is totally erroneous in law.  

12. In view of the above statement of evidence of  

PW3 and PW4 whose evidence is important for the  

prosecution to prove the chain of events as per its  

case, the statement of evidence of the aforesaid  

witnesses  has  seriously  affected  the  prosecution  

case.  Therefore, the courts below could not have,

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at any stretch of imagination, on the basis of the  

evidence  on  record  held  that  the  appellant  is  

guilty of committing the offence under Section 376,  

IPC.  Further, according to the prosecutrix, PW3  

who is alleged to have rescued her from the place  

of occurrence of offence, has clearly stated in his  

evidence that he does not know anything about the  

incident  in  his  statement  thereby  he  does  not  

support the version of prosecution. The High Court  

has erroneously accepted the finding of the trial  

court that the appellant has not been prejudiced  

for non-examination of the doctor for the reason  

that she was working as a Nurse in the private  

hospital of PW4 and being a nurse she knew that the  

information  on  commission  of  rape  is  grave  in  

nature and she would not have hesitated in giving  

the information to the police if the occurrence was  

true. Further, the finding of the courts below that  

non-examination of the I.O. by the prosecution who  

has conducted the investigation in this case has  

not caused prejudice to the case of the appellant,

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since the prosecution witnesses were unfavorable to  

the  prosecution  who  were  either  examined  or  

declared  hostile  by  the  prosecution,  which  

reasoning is wholly untenable in law. Therefore,  

the finding and reasons recorded by both the trial  

court  as  well  as  the  High  Court  regarding  non-

examination of the above said two witnesses in the  

case has not prejudiced the case of the appellant  

is  totally  an  erroneous  approach  of  the  courts  

below. For this reason also, we have to hold that  

the findings and reasons recorded in the impugned  

judgment  that  the  trial  court  was  justified  in  

holding that the prosecution has proved the charge  

against the appellant and that he has committed the  

offence on the prosecutrix, is totally erroneous  

and the same is wholly unsustainable in law.     

13. The finding with regard to the sentence of the  

appellant  recorded  by  the  trial  court  which  is  

accepted by the High Court on the basis of the  

solitary  testimony  of  prosecutrix  which  is  

supported by the evidence of her mother PW2 is once

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again an erroneous approach on the part of the High  

Court.   The  offence  of  rape  alleged  to  have  

committed by the appellant is established without  

any evidence as the prosecution failed to prove the  

chain  of  events  as  stated  by  the  prosecutrix.  

Since the evidence of PW3 & PW4 did not support the  

prosecution  case,  but  on  the  other  hand,  their  

evidence  has  seriously  affected  the  story  of  

prosecution. Therefore, the courts below could not  

have found the appellant as guilty of the charge  

and convicted and sentenced him for the offence of  

rape.

14. Further, one more strong circumstance which has  

weighed  in  our  mind  is  that  they  had  good  

acquaintance with each other as they were class-

mates and they were in terms of meeting with each  

other. The defence counsel had alternatively argued  

that the appellant had sex with her consent. The  

High  Court  proceeded  not  to  accept  the  said  

argument  by  giving  reasons  that  the  appellant

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failed to explain as to under what circumstance he  

had sex with the consent of the prosecutrix when  

she  was  confined  in  his  house.   The  contention  

urged  on  behalf  the  appellant  that  it  was  

consensual  sex  with  the  prosecutrix  is  to  be  

believed for the reason that she herself has gone  

to the house of the appellant though her version is  

that she went there at the request of the appellant  

to take back her book which she had given to him.  

This  is  a  strong  circumstance  to  arrive  at  the  

conclusion that the defence case of the appellant  

is a consensual sex.  Further, the prosecution case  

is  that  after  the  offence  was  committed  by  the  

appellant he had locked the room from outside and  

left. After half an hour Purnendu Babu- PW3 arrived  

and unlocked the room. This story is improbable to  

believe  and  the  prosecutrix  has  not  lodged  the  

complaint either immediately or within reasonable  

period from the date of occurrence.  The complaint  

was undisputably lodged after lapse of 11 days by  

the prosecutrix.  In this regard, it is pertinent

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to mention the judgment of this Court in  Raju v.  State of Madhya Pradesh2, the relevant paragraph of  which  is  extracted  hereunder  for  better  

appreciation in support of our conclusion:

“12. Reference has been made in  Gurmit Singh case to  the amendments in 1983 to Sections 375 and 376 of the  Penal Code making the penal provisions relating to rape  more stringent, and also to Section 114-A of the Evidence  Act with respect to a presumption to be raised with regard  to allegations of consensual sex in a case of alleged rape.  It is  however significant that Sections 113-A and 113-B  too  were  inserted  in  the  Evidence  Act  by  the  same  amendment  by  which  certain  presumptions  in  cases  of  abetment  of  suicide  and dowry death  have been raised  against  the  accused.  These  two  sections,  thus,  raise  a  clear  presumption  in  favour  of  the  prosecution  but  no  similar presumption with respect to rape is visualised as  the  presumption  under  Section  114-A  is  extremely  restricted  in  its  applicability.  This  clearly  shows  that  insofar as allegations of rape are concerned, the evidence  of a prosecutrix must be examined as that of an injured  witness whose presence at the spot is probable but it can  never  be  presumed  that  her  statement  should,  without  exception, be taken as the gospel truth. Additionally, her  statement can, at best, be adjudged on the principle that  ordinarily no injured witness would tell a lie or implicate a  person falsely. We believe that it is under these principles  that this  case, and others such as this  one, need to be  examined.”

15. For the aforesaid reasons the prosecution case  

is not natural, consistent and probable to believe  

to  sustain  the  conviction  and  sentence  of  the  2 (2008) 5 SCC 133

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appellant  for  the  alleged  offence  said  to  have  

committed by him.

16.  The  trial  court  as  well  as  the  High  Court  

should have appreciated the evidence on record with  

regard to delay and not giving proper explanation  

regarding delay of 11 days in filing FIR by the  

prosecutrix  and  non-examination  of  complainant  

witnesses, viz. the Doctor and the I.O. which has  

not  only  caused  prejudice  to  the  case  of  the  

appellant  but  also  the  case  of  prosecution  has  

created reasonable doubt in the mind of this Court.  

Therefore, the benefit of doubt must enure to the  

appellant. As we have stated above the testimony of  

the prosecutrix is most unnatural and improbable to  

believe  and  therefore  it  does  not  inspire  

confidence  for  acceptance  of  the  same  for  

sustaining the conviction and sentence. Therefore,  

we  are  of  the  view  that  the  impugned  judgment  

requires to be interfered with by this Court in  

exercise  of  its  jurisdiction.   Accordingly,  we

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allow  the  appeal  and  set  aside  the  impugned  

judgment.

17. If the appellant has executed the bail bonds,  

the same may be discharged.

                       ……………………………………………………………J.      [ CHANDRAMAULI KR. PRASAD ]

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

New Delhi, March 15, 2013.

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