REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 264   OF 2020 (Arising out of SLP(Criminal) No.3780/2018)

SANTOSH PRASAD @ SANTOSH KUMAR …APPELLANT

VERSUS

THE STATE OF BIHAR …RESPONDENT

J U D G M E N T

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order

dated 7.2.2018 passed by the High Court of Judicature at  Patna in Criminal

Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal

preferred by the original accused and has confirmed the judgment and order of

conviction passed by the learned Sessions Court convicting the accused for the

offences  punishable  under  Sections  376(1)  and 450 of  the IPC,  the original

accused has preferred the present appeal.

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2. That  the  appellant  herein  –  original  accused  was tried  by the  learned

Sessions Court for the offences punishable under Sections 376(1) and 450 of the

IPC.  A written complaint was filed by the prosecutrix – PW5 on 16.09.2011

before the local police station against the accused alleging, inter alia, that in the

preceding night at about 11:00 p.m. she awaken after hearing some sound and

whereupon in the light of the mobile phone she found the accused – brother of

her  husband  whereupon  she  made  query.   Instead  of  giving  any  reply,  he

committed the rape upon her.   According to  the prosecution and as  per  the

prosecutrix, thereafter the accused ran away and after getting an opportunity she

raised alarm and the neighbours came there including one Suman Devi,  her

cousin Gotini as well as Shanti Devi, her cousin mother-in-law.  She disclosed

the  event/incident  to  them.   According to  the  prosecutrix,  she  informed her

mother-in-law and father-in-law who were at Gaya.  At the time of incident, her

husband was away from the village.  Thereafter on their arrival she came to the

police station along with them and submitted written report.  FIR was registered

against the accused being P.S. Case No. 325/2011.  Investigation was carried out

by  the  officer  in-charge  of  Makhdumpur  Police  Station.   He  recorded  the

statement of the concerned witnesses.  The clothes/apparels of the prosecutrix

were seized and were sent to FSL.  He also collected the medical report from

Dr. Renu Singh, PW7, who examined the victim.  Thereafter on conclusion of

the  investigation,  the  Investigating  Officer  filed  the  chargesheet  against  the

accused for the offences punishable under Sections 376(1) and 450 of the IPC.

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As  the  case  was  triable  by  the  Court  of  Sessions,  the  learned  Magistrate

committed the case to the Sessions Court which was transferred to the Court of

learned  Additional  Sessions  Judge,  Ist,  Jehanabad,  which  was  numbered  as

Sessions Trial No. 456 of 2011/90/2012.  The accused pleaded not guilty and

therefore he came to be tried by the learned Sessions Court for the aforesaid

offences.

2.1 To prove  the  charge,  the  prosecution  examined  in  all  eight  witnesses

including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7).

Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the

prosecution and therefore were declared hostile.  The prosecution also brought

on record the FIR, Injury Report and FSL Report.  After closure of the evidence

of the prosecution, further statement of the accused under Section 313, Cr.P.C.

was recorded.   The case of  the accused was of  total  denial.   Thereafter,  on

appreciation of  evidence on record,  the learned trial  Court  held the accused

guilty for the offences under Sections 376(1) and 450 of the IPC. The learned

trial Court sentenced the accused to undergo 10 years R.I. for the offence under

Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the

IPC.

2.2 Feeling  aggrieved  and  dissatisfied  with  the  judgment  and  order  of

conviction and sentence passed by the learned trial Court, the accused preferred

an appeal before the High Court.  By the impugned judgment and order, the

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High Court has dismissed the said appeal.  Hence, the accused has preferred the

present appeal.

3. Shri Santosh Kumar, learned Advocate appearing on behalf of the original

accused has vehemently submitted that in the facts and circumstances of the

case both the courts below have materially erred in convicting the accused for

the offences under Sections 376 and 450 of the IPC.

3.1 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  the  courts  below have  not

properly appreciated the fact that as such the medical report does not support

the case of the prosecutrix/prosecution.  It is submitted that the evidence of the

prosecutrix is not supported by the medical evidence since no stains of semen or

blood were found on the clothes of the prosecutrix.  It is submitted therefore

that it creates serious doubt about the credibility of the prosecutrix.

3.2 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  there  was  a  delay  in

lodging/reporting the case to the police.

3.3 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing on behalf of the original accused that both the courts below have not

properly  appreciated  the  fact  that  there  was  a  family  enmity  between  the

accused and the family of the prosecutrix with respect to the land dispute.  It is

submitted  that  no  independent  witnesses  have  been  examined  by  the

prosecution.  It is submitted that as there was a dispute between the accused and

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the  family  members  of  the  prosecutrix,  non-examination  of  the  material

independent witnesses, the case of the prosecution suffers from serious doubts.

3.4 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  as  per  the  doctor  and  the

medical report/injury report, no injury was found on the person of the victim

and private parts especially.  It is submitted that therefore in the absence of any

injury the story put forth by the prosecutrix/prosecution is not believable.

3.5 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing on behalf of the original accused that except the deposition/evidence

of the prosecutrix which has not been corroborated by the medical evidence,

there is no other independent and cogent evidence to connect the accused with

the guilt.

3.6 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  even  the  doctor  has

categorically said that there is no physical or pathological evidence of rape.

3.7 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  even  in  the  FSL

report/serological report of the blood and semen allegedly found on the petticoat

of  the  prosecutrix  was  inconclusive.   It  is  submitted  that  therefore  the

serological report of blood and semen, allegedly found on the petticoat of the

prosecutrix, does not help the prosecution.

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3.8 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  even  there  are  material

contradictions  in  the  deposition  of  the  prosecutrix.   It  is  submitted  that  the

prosecutrix has deposed during trial that she had given an oral statement before

the police whereas the FIR has been lodged on the written report and the scribe

has neither been examined nor produced before the Investigating Officer.     

3.9 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing  on  behalf  of  the  original  accused  that  even  there  is  a  material

contradiction  with  respect  to  lodging  of  the  FIR/the  written  report.  It  is

submitted that as per the prosecutrix she had gone to the police station at 10

O’clock  and  the  police  had  enquired  at  10  O’clock.   However,  the  FIR  is

registered at  4:00 p.m.  It  is  submitted that  therefore it  appears that  earliest

version has been suppressed and therefore the FIR is hit by Section 162 Cr.P.C.

3.10 It  is  further  submitted  by  Shri  Santosh  Kumar,  learned  Advocate

appearing on behalf of the original accused that even the story put forth by the

prosecutrix in her evidence that she had seen the accused jumping the fallen

boundary wall and when she shouted the accused pushed towel in her mouth

and she identified him in mobile light is not believable at all.  It is submitted

that even according to the prosecutrix she was sleeping in her room having door

closed.  Thus, she will not be able to see any person doing any act outside room.

It is submitted that neither the number of the mobile nor even the mobile is

produced before the investigating officer.

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3.11 It is further submitted that therefore when the conviction is based on the

sole testimony of the prosecutrix and the medical evidence does not support the

case of the prosecution/prosecutrix and the deposition of the prosecutrix is full

of  material  contradictions  and that  there  was  already  a  dispute  between  the

accused  and  the  family  members  of  the  prosecutrix  and  no  independent

witnesses have been examined, it is not safe to convict the accused solely on

such testimony of the prosecutrix.  In support of the above submission, learned

counsel has heavily relied upon the decisions of this Court in the cases of Raju

and others v.  State  of  Madhya Pradesh (2008)  15 SCC 133 as  well  as  Rai

Sandeep alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21.

3.12 Making the above submissions and further relying upon the decisions of

this Court in the cases of Mukesh v. State of Chhattisgarh (2014) 10 SCC 327 as

well as Ravindra v. State of Madhya Pradesh (2015) 4 SCC 491, it is prayed to

allow the present appeal and quash and set aside the impugned judgment and

order passed by the High Court as well as the learned Sessions Court and acquit

the accused for the offences for which he was tried and convicted by the learned

Sessions Court, confirmed by the High Court.

4. The  present  appeal  is  vehemently  opposed  by  Shri  Keshav  Mohan,

learned Advocate appearing on behalf of the State of Bihar.  

4.1 It is vehemently submitted by the learned Advocate appearing on behalf

of  the  respondent  –  State  that  in  the  present  case  the  prosecutrix  has  fully

supported the case of the prosecution.  It is submitted that as observed by this

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Court in the cases of  Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 as

well as State of Punjab v. Gurmeet Singh & others (1996) 2 SCC 384, the courts

must, while evaluating evidence, remain alive to the fact that in a case of rape,

no  self-respecting  woman  will  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.

4.2 Relying upon the decision of  this Court  in the case of  Raju & others

(supra), it is submitted that as observed and held by this Court that ordinarily

the evidence of a prosecutrix should not be suspected and should be believed

and if the evidence is reliable, no corroboration is necessary.

4.3 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that even otherwise in the present case the petticoat of the

prosecutrix was sent to FSL and the petticoat was having the blood as well as

semen stains.  It is submitted that therefore the FSL report discloses that the

victim/prosecutrix was subjected to rape and it also discloses the involvement of

the accused.

4.4 Relying  upon  the  decision  of  this  Court  in  the  case  of  Rajendra

Pralhadrao Wasnik v. State of Maharashtra, it is vehemently submitted by the

learned counsel appearing on behalf of the State that as held by this Court that

merely  because  the  FSL report  is  inconclusive,  it  is  not  necessary  that  the

irresistible conclusion is only one that the accused is not guilty.

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4.5 It is further submitted by the learned Advocate appearing on behalf of the

respondent  –  State  that  mere  absence  of  spermatozoa  cannot  discredit  the

testimony of the prosecutrix, as she was examined by the lady doctor almost

after 36 hours from the date of occurrence.

4.6 It is further submitted by the learned Advocate appearing on behalf of the

respondent  –  State  that  even  the  lady  doctor,  PW7  has  also  opined  that

possibility of rape cannot be ruled out.  It is submitted that as held by this Court

in the case of B.C. Deva v. State of Karnataka (2007) 12 SCC 122 that in spite

of the fact that no injuries were found on the person of the prosecutrix, yet the

prosecutrix can be relied upon.

4.7 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that prosecutrix is an adult lady of full understanding.  It is

submitted that therefore merely because during the medical examination doctor

did not find any external or internal injury on the body of the prosecutrix, her

statement cannot be discarded.  It is submitted therefore that in the facts and

circumstances  of  the  case,  no  error  has  been  committed  by both  the  courts

below in convicting the accused for the offences under Sections 376 and 450 of

the IPC.

4.8 Making the above submissions and relying upon the aforesaid decisions

of this Court, it is prayed to dismiss the present appeal.

5. We have heard the learned counsel for the respective parties at length.

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5.1 We have considered in detail the impugned judgments and orders passed

by the  High Court  as  well  as  that  of  the  learned trial  Court  convicting  the

accused.  We have also considered in detail the evidence on record, both oral as

well as documentary.

5.2 From the  impugned  judgments  and  orders  passed  by  both  the  courts

below, it appears that the appellant has been convicted solely  relying upon the

deposition of the prosecutrix (PW5).  Neither any independent witness nor even

the medical evidence supports the case of the prosecution.  From the deposition

of PW1, it has come on record that there was a land dispute going on between

both the parties.  Even in the cross-examination even the PW5 – prosecutrix had

admitted that she had an enmity with Santosh (accused).  The prosecutrix was

called for medical examination by Dr. Renu Singh – Medical Officer and PW7 –

Dr. Renu Singh submitted injury report.  In the injury report, no sperm as well

as RBC and WBC were found.  Dr. Renu Singh, PW7 – Medical Officer in her

deposition has specifically opined and stated that she did not find any violence

marks on the body of the victim. She has also categorically stated that there is

no physical or pathological evidence of rape.  It is true that thereafter she has

stated that possibility of rape cannot be ruled out (so stated in the examination-

in-chief).  However, in the cross-examination, she has stated that there was no

physical or pathological evidence of rape.

5.3 As per the FSL report, the blood group on the petticoat and the semen on

the  petticoat  are  stated  to  be  inconclusive.  Therefore,  the  only  evidence

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available on record would be the deposition of the prosecutrix.  It cannot be

disputed  that  there  can be a  conviction solely  based on the evidence of  the

prosecutrix.   However,  the  evidence  must  be  reliable  and  trustworthy.

Therefore,  now let  us examine the evidence of  the prosecutrix  and consider

whether  in  the  facts  and circumstances  of  the  case  is  it  safe  to  convict  the

accused solely based on the deposition of  the prosecutrix,  more particularly

when neither the medical report/evidence supports nor other witnesses support

and it has come on record that there was an enmity between both the parties.

5.4 Before considering the evidence of the prosecutrix, the decisions of this

Court in the cases of Raju (supra) and Rai Sandeep @ Deepu, relied upon by he

learned Advocate appearing on behalf of the appellant-accused, are required to

be referred to and considered.

5.4.1 In the  case  of  Raju (supra),  it  is  observed and held  by this  Court  in

paragraphs 11 and 12 as under:

“11. It  cannot  be  lost  sight  of  that  rape  causes  the  greatest  distress  and humiliation to the victim but at the same time a false allegation of rape can cause  equal  distress,  humiliation  and damage  to  the  accused  as  well.  The accused must  also be protected against  the possibility  of false  implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and

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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.”

5.4.2 In  the  case  of  Rai  Sandeep  alias  Deepu  (supra),  this  Court  had  an

occasion to consider who can be said to be a “sterling witness”.  In paragraph

22, it is observed and held as under:

“22 In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in  the  version  of  such  a  witness.  The  witness  should  be  in  a  position  to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence  where  there  should  not  be  any  missing  link  in  the  chain  of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all

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other such similar tests to be applied, can it be held that such a witness can be called  as  a  “sterling  witness” whose version can be accepted  by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

5.4.3 In the case of  Krishna Kumar Malik v. State of Haryana (2011) 7 SCC

130, it is observed and held by this Court that no doubt, it is true that to hold an

accused guilty for commission of an offence of rape, the solitary evidence of the

prosecutrix is sufficient provided the same inspires confidence and appears to be

absolutely trustworthy, unblemished and should be of sterling quality.

5.5 With  the  aforesaid  decisions  in  mind,  it  is  required  to  be  considered,

whether is it safe to convict the accused solely on the solitary evidence of the

prosecutrix?  Whether the evidence of the prosecutrix inspires confidence and

appears to be absolutely trustworthy, unblemished and is of sterling quality?

6. Having gone through and considered the deposition of the prosecutrix, we

find  that  there  are  material  contradictions.   Not  only  there  are  material

contradictions,  but  even the manner in which the alleged incident  has taken

place as per the version of the prosecutrix is not believable.  In the examination-

in-chief, the prosecutrix has stated that after jumping the fallen compound wall

accused came inside and thereafter the accused committed rape.  She has stated

that  she  identified  the  accused  from the  light  of  the  mobile.   However,  no

mobile  is  recovered.  Even  nothing  is  on  record  that  there  was  a  broken

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compound wall.  She has further stated that in the morning at 10 O’clock she

went to the police station and gave oral complaint.  However, according to the

investigating officer a written complaint was given.  It is also required to be

noted  that  even  the  FIR  is  registered  at  4:00  p.m.   In  her  deposition,  the

prosecutrix has referred to the name of Shanti Devi, PW1 and others.  However,

Shanti Devi has not supported the case of the prosecution.  Therefore, when we

tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has

failed to pass any of the tests of “sterling witness”.  There is a variation in her

version about giving the complaint.  There is a delay in the FIR.  The medical

report does not support the case of the prosecution. FSL report also does not

support the case of the prosecution.  As admitted, there was an enmity/dispute

between  both  the  parties  with  respect  to  land.   The  manner  in  which  the

occurrence is stated to have occurred is not believable.  Therefore, in the facts

and  circumstances  of  the  case,  we  find  that  the  solitary  version  of  the

prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the

absence  of  any  other  supporting  evidence,  there  is  no  scope  to  sustain  the

conviction and sentence imposed on the appellant and accused is to be given the

benefit of doubt.

6. In  view of  the  above  and  for  the  reasons  stated  above,  the  appeal  is

allowed.  The impugned judgment and order of conviction and sentence passed

by the learned trial Court and confirmed by the High Court are hereby quashed

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and set aside. The appellant is acquitted from all the charges levelled against

him and he be set at liberty forthwith, if not required in any other case.

……………………………………J. [ASHOK BHUSHAN]

NEW DELHI; …………………………………..J. FEBRUARY 14, 2020. [M.R. SHAH]

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