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           NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 544 OF 2018

Sham Singh          ..Appellant

Versus

The State of Haryana        ..Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. This  appeal  arises  out  of  the  judgment  and  order  dated

17.07.2015 passed by the High Court of Punjab and Haryana at

Chandigarh in CRA-S-1648-SB of 2011, whereby the High Court

dismissed the appeal filed by the convicted accused, namely Jai

Singh and Sham Singh.   

Since  the  first  accused  –  Jai  Singh  has  undergone  the

sentence imposed upon him by the Courts below, he is stated to

have  been  released.  However,  the  accused-

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Sham Singh, appellant  herein,  is  serving the remainder of  his

sentence.

2. The case of the prosecution in brief is that on the night of

22.08.2001, the minor victim girl (PW7), who was staying in the

house of her paternal uncle Om Prakash and Aunt Laxmi (PW10),

stepped out of the house to urinate, then she was approached by

the two accused, namely Jai Singh and Sham Singh. Both of the

accused are brothers inter se. The accused and the victim are

cousins.  The accused forcibly  took the victim into their  house

and tied her hands on a cot with rope and committed rape on

her. The mother of the accused, having learnt about the incident,

told  the victim to  forget  about  the  incident  and threatened to

wipe out her family in case she disclosed about the incident to

anybody.  She  further  made  the  victim  consume  some  liquid,

which resulted in loss of consciousness of the victim. On the next

day, at about 5:00 a.m., the milkman Mahavir (not examined by

the Trial Court) informed the Aunt (PW10) of the victim about the

victim lying unconscious in front of a neighbouring house.

3. Based  on  the  aforesaid  allegations,  the  first  information

came to be lodged, which was registered in City Police Station at

Palwal,  Faridabad  District,  Haryana  in  FIR  No.  653  dated

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25.08.2001.  Investigation was made and charge sheet came to

be  filed  in  the  Sessions  Court,  Faridabad.   The  Additional

Sessions Court framed charges against both the accused, namely

Jai  Singh and Sham Singh, for  the offences punishable under

Sections 376 (2)(g), 342 and 506 of the Indian Penal Code, and

against  the  mother  of  the  accused,  namely  Memwati,  under

Sections 342 and 506 of the IPC.

4. The Additional Sessions Judge (Ad-hoc), Fast Track Court

No.II,  Faridabad,  after  appreciating  the  materials  on  record,

acquitted  the  accused  by  its  judgment  and  order  dated

29.03.2003.  Thereafter, the victim preferred an appeal before the

High  Court,  which  came  to  be  allowed,  and  set  aside  the

judgment of acquittal passed by the Trial Court. The High Court

remitted  the  matter  back  to  the  Trial  Court  for  fresh

consideration.   The  Trial  Court  on  re-consideration  of  the

materials on record, convicted the accused by its judgment dated

4.6.2011. Against this conviction, the accused preferred appeal

before the High Court, and the High Court while confirming the

judgment of conviction against the accused Jai Singh and Sham

Singh,  has acquitted the accused mother  –  Memwati  from the

charges levelled against her.  As mentioned supra, the accused

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Jai Singh has served out the sentence imposed upon him and

hence this appeal is only by the accused – Sham Singh, who is

still serving the remainder of his sentence.

5. Learned counsel for the appellant taking us to the materials

on  record  contended  that  the  High  Court  is  not  justified  in

assuming  that  the  injuries  sustained  by  the  victim may  have

healed  at  the  time  of  medico-legal  examination  and  the  FSL

report (Annexure P13) states that semen was not found on the

vaginal swab of the victim as well as on the  salwar.  That the

accused were relatives of the prosecutrix, however there was an

ill  will  between the  two families  and in view of  the same,  the

accused persons are falsely  implicated.  The evidence of  Aunt/

Laxmi (PW10) and Medical Officer, Dr. Rekha Singh (PW6) do not

establish the offence of  rape against the accused.  The Courts

below have  ignored  the  fact  that  the  accused  could  not  have

committed rape in his own house, particularly when the other

family members were present in the house. It was also argued

that  the  material  witness,  namely,  milkman  Mahavir,  who

informed the Aunt about the victim lying unconscious in front of

the house of one Pappu, was not examined, which is fatal to the

case  of  the  prosecution.  Even  Pappu  before  whose  house  the

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victim was allegedly lying unconscious was also not examined.

The  Courts  below are  not  justified  in  disbelieving  the  defence

version  that  the  panchayat  was  conducted  because  the  first

accused had given a slap on the face of the victim, inasmuch as

he had come in possession of certain love letters written by the

victim  to  someone.  That  the  first  accused  apologised  before

panchayat for his behaviour of slapping the victim and not for the

alleged rape. Thus the ‘mafinama’ given by the accused was on

account  of  giving  slap  to  the  victim  and  not  in  respect  of

committing any other offence. The appreciation of evidence by the

Trial Court and the High Court is not proper and correct.  On

these, among other grounds, it was prayed for acquittal of the

accused.

Per contra, learned counsel for the State argued in support

of the judgments of the Trial Court and the High Court.

6. We  are  conscious  that  the  courts  shoulder  a  great

responsibility while trying an accused on charges of rape.  They

must deal with such cases with utmost sensitivity.  The courts

should examine the broader probabilities of a case and not get

swayed by minor contradictions or insignificant discrepancies in

the statement of the prosecutrix, which are not of a fatal nature,

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to  throw  out  an  otherwise  reliable  prosecution  case.  If  the

evidence of the prosecutrix inspires confidence, it must be relied

upon  without seeking corroboration of her statement in material

particulars. If for some reason the court finds it difficult to place

implicit reliance on her testimony, it may look for evidence which

may  lend  assurance  to  her  testimony,  short  of  corroboration

required  in  the  case  of  an  accomplice.   The  testimony  of  the

prosecutrix must be appreciated in the background of the entire

case  and the  court  must  be  alive  to  its  responsibility  and be

sensitive while dealing with cases involving sexual molestations

or sexual assaults. (see State of Punjab vs. Gurmit Singh, (1996) 2

SCC 384 (para21)).

7. It is also by now well  settled that the courts must, while

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

rape, no self-respecting woman would come forward in a court

just to make a humiliating statement against her honour such as

is involved in the commission of rape on her.  In cases involving

sexual  molestation,  supposed  considerations  which  have  no

material  effect on the veracity of  the prosecution case or even

discrepancies  in  the  statement  of  the  prosecutrix  should  not,

unless the discrepancies are such which are of fatal nature, be

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allowed to throw out an otherwise reliable prosecution case.  The

inherent bashfulness of the females and the tendency to conceal

outrage of sexual aggression are factors which the courts should

not overlook.  The testimony of the victim in such cases is vital

and  unless  there  are  compelling  reasons  which  necessitate

looking for corroboration of her statement, the courts should find

no difficulty to act on the testimony of a victim of sexual assault

alone  to  convict  an  accused  where  her  testimony  inspires

confidence and is found to be reliable.  Seeking corroboration of

her statement before relying upon the same, as a rule, in such

cases amounts to adding insult to injury.  (see  Ranjit Hazarika

vs. State of Assam, (1998) 8 SCC 635).

8. It is also relevant to note the following observations of this

Court in the case of  Raju vs. State of M.P. (2008) 15 SCC 133,

which read thus:

“10. The  aforesaid  judgments  lay  down  the  basic principle that ordinarily the evidence of a prosecutrix should  not  be  suspected  and  should  be  believed, more so as her statement has to be evaluated on a par  with  that  of  an  injured  witness  and  if  the evidence  is  reliable,  no  corroboration  is  necessary. Undoubtedly, the aforesaid observations must carry the  greatest  weight  and we  respectfully  agree  with them,  but  at  the  same  time  they  cannot  be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.

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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.”

We  have  assessed  the  entire  material  on  record  to

satisfy  our  conscience  once  again,  keeping  in  mind  the

aforementioned set principles in such matters.

9. The medical examination of the victim was conducted by Dr.

Rekha  Singh  (PW6),  Medical  Officer,  General  Hospital,  Palwal.

She has deposed that the victim was aged about 15 years at the

time of the incident and had sustained an injury on the left side

of the forehead and such injury is nothing but a small abrasion

with  crust  formation.  The  organs  of  generation  were  fully

developed and the secondary organs were also fully developed.

The  vagina  of  the  victim  permitted  two  fingers.  However,  the

doctor observed the absence of hymen and did not mention the

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age of tear of the hymen because the tear was old. The vaginal

swab and the salwar worn by the victim during the course of the

incident were sent by the doctor to Forensic Sciences Laboratory

for chemical examination, but no presence of semen was found

on any of these exhibits.  Finally however, the doctor has opined

that the possibility of sexual assault upon the victim cannot be

ruled out, though she did not specify as to whether the sexual

assault was in the recent past.     

10. The  victim  was  examined  as  PW7.   She  reiterated  the

incident as stated by her in the first information. According to

her, the panchayat was convened in the village for the purpose of

settling the rape incident and not for the slapping incident.  She

denied writing any love letters to any person.  It is specifically

deposed by her that at the time of incident, the wife, children,

sister  and  mother  of  the  accused  prsons  were  present  in  the

house. She had resisted the tying of her hands and act of rape,

and while doing so, she had sustained scratches on her wrists.

She had shown these injuries to her Aunt Laxmi (PW10) and the

doctor.

11. Aunt of  the victim, Laxmi (PW10) has deposed that there

was a family dispute between her family and the family of the

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accused  and  a  case  is  pending  with  regard  to  an  assault  on

accused – Appellant Sham Singh by her son. She further stated

that in the morning at about 5:00 a.m., the milkman Mahavir

informed her that her niece, the victim, was lying unconscious in

front  of   neighbouring  house;  the  milkman  and  the  aunt

thereafter went to the said place and brought the victim inside

the house. A doctor was called who administered an injection to

the victim.  It is specifically admitted by PW10 that she did not

see any injury on the victim.

12. The Investigating Officer (PW13) has deposed that he had

not come across, during the investigation, any talks and efforts in

the village regarding any panchayat held between the period of

incident and the filing of  the complaint.  No one had told him

about any commotion arising in the village regarding the incident

in question. During investigation, no compromise or confession

deed made before the panchayat was produced before him. He

stated that there are houses near the place where the victim was

allegedly  left  unconscious  and  he  made  enquiries  from  the

persons  living  around  that  place,  but  he  could  not  get  any

information regarding any such incident.

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13. The  aforementioned  witnesses  are  the  only  relevant

prosecution witnesses for deciding this appeal.  Looking to the

above evidence, it is amply clear that the case of the prosecution,

as made out, appears to be artificial and concocted.  It may not

be probable to commit rape in one’s own house in front of the

sister, children, wife and mother.  If in actuality the incident had

taken  place,  the  medical  report  would  have  gone  against  the

accused.  Be that as it may, before commenting anything further,

it is better to discuss the evidence of the defence also.

14. The Panchayatdar, namely Lakhpat Singh, was examined on

behalf  of  the  defence  as  DW1.   He  had  presided  over  the

panchayat during the relevant date.  He is also a common relative

for  both  the  parties.   He  has  specifically  deposed  that  the

panchayat meeting was called to discuss about the incident of

slapping  the  victim  by  the  first  accused  –  Jai  Singh,  due  to

objectionable activities of the victim in relation to sexual matters.

In the panchayat, the first accused confessed for having slapped

the  victim  and  consequently  he  sought  apology  for  the  same

before the  panchayat.  The ‘Mafinama’  was written by the  first

accused  and  the  same  was  counter-signed  by  DW1.   He  has

specifically deposed that he has seen the house of Aunt Laxmi

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(PW10),  where the victim was staying and that the said house

consisted of a bathroom and latrine.

15. The  deposition  of  DW1  is  corroborated  by  DW2  -   

Charan Singh, who was also a member of the panchayat and a

signatory to the ‘Mafinama’ (Ex DB) written by the first accused.

He has also deposed that the panchayat was held in respect of

the incident of slapping, although there is no express mention of

the same in the said ‘Mafinama’ (Ex DB). He denied the allegation

that this document is fake and was prepared after initiation of

the proceedings for the offence of rape.  

16. The  relevant  portion  of  the  ‘Mafinama’  (Ex  DB)  and  its

English translation reads as under:

Original version:

“Mai Jai Singh, Niwasi gaao Agwanpur, mere se apne chacha ki ladki se galat vaivhar galti se ho gaya, mai hath jod kar pure gaao se, sabhi logo se mafi mangta hu. Kripya mujhe maaf kiya jae agar ayanda koi galti mai karta hu to jo kuch pura gaao chahae wo saluki mere sath kiya jave.”  

English translation:

“I, Jai Singh, resident of Agwanpur village, do hereby admit that unfortunately I had misbehaved with my Uncle’s daughter.  With my folded hands, I apologise for  the  same in  front  of  the  whole  village.   Please forgive me.  If  I commit any mistake in the future, whatever punishment as decided by the village, I will bow down to.”

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17. In the statement recorded under Section 313 of the Code of

Criminal Procedure, the first accused, Jai Singh denied all the

allegations made against him and his brother, Sham Singh, the

appellant  herein.  He  has  stated  that  the  incident  is  a  false

implication because of the family enmity that existed between the

victim’s family and his family. He had come in possession of a few

love letters which the victim had written to certain boys and he

had knowledge about the bad company of the victim. In these

circumstances, he confronted the victim and had slapped her due

to natural instinct. In this regard, a panchayat was held and in

the said panchayat he confessed for having slapped the victim

and also gave assurance that he will not repeat the said act.

18. The  evidence  of  DW1  and  DW2  was  not  shaken  in  the

cross-examination.   There is  nothing  on record to  discard the

evidence of these witnesses. DW1 and DW2 are Panchayatdars

and are independent witnesses.  Moreover, DW1 is a relative of

both,  the  victim  and  the  accused  and  he  does  not  have  any

grudge against the victim.  The evidence of DW1 and DW2 have

practically remained untouched and their version fully supports

the  stand  taken  by  the  accused  persons.   It  is  specifically

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deposed by DW1 that he has seen the house of Laxmi (PW10),

where  the  victim  was  staying,  and  the  said  house  is  having

bathroom and latrine.  If it is so, there was no occasion for the

victim to go out of the house for the purpose of urinating.  These

facts, coupled with the fact that there is no medico-legal report to

support the case of the victim relating to offence of rape, and as

there are  no injuries  on the body of  the victim,  which is  also

admitted by PW10, it appears that the prosecution has cooked up

the  story  against  the  accused  for  the  reasons  best  known to

them.

19. The  High  Court  has  mainly  relied  upon  the  ‘Mafinama’

(exhibit DB) to conclude that the accused himself has confessed

about his illegal act. But during the process, the High Court has

not given due weightage to the evidence of DW1 and DW2, whose

evidence  has  remained  unrebutted.   The  panchayat  was  not

convened for the purpose of enquiring the offence of rape by the

accused, but it was convened for the purpose of enquiring about

the incident of a slap given to the victim by the first accused. We

find  that  this  is  a  case  wherein  incriminating  materials  are

lacking against the accused.

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20. It  is  also  relevant  to  note  that  curiously  the  victim,  as

mentioned supra,  has  deposed on 31.05.2002 before  the  Trial

Court  corroborating  the  incident  as  mentioned  in  the  first

information.  However,  there  is  no  mention  anywhere  in  her

statement about the panchayat  that took place for  the alleged

incident  of  rape  and  the  accused  persons  confessing  the

commission  of  offence.   It  is  only  when  she  was  recalled  for

re-examination on 24.12.2002, i.e., after a lapse of about seven

months, that she has deposed about the panchayat being held

and about the alleged confession made by the accused about the

offence of rape.  Such crucial information relating to panchayat

could not have been left out by the victim in case such panchayat

was actually being held to enquire the alleged offence of rape. As

mentioned  supra,  the  wife,  children,  sister  and mother  of  the

accused  persons  were  present  in  the  house  when the  alleged

incident  took  place.   We  find  that  such  a  scenario  is  highly

unlikely.  It is natural for a young girl to sustain certain injuries

on the wrist, if the accused had tightly tied her hands on a cot

with rope  against  her  will,  but  the  doctor’s  evidence  discloses

that no such injuries were found on the wrist of the victim. Even

the Aunt of the victim, PW10, also deposed that she did not find

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any injuries on the body of the victim despite the victim deposing

that she had shown the injuries to her Aunt (PW 10).  Only one

injury  was  found  and  it  was  only  a  small  abrasion  on  the

forehead of  the  victim,  which was not  even mentioned by  the

victim in her deposition.

21. The  three  important  witnesses,  namely  the  milkman

Mahavir, the doctor who administered injection immediately after

the alleged incident and Pappu in front of whose house the victim

was  allegedly  lying  unconscious  were  not  examined  by  the

prosecution. Non-examination of these crucial witnesses further

weakens the case of the prosecution.

22. The  fact  that  at  the  residential  house  of  the  appellant,

wherein  all  the  inmates  of  the  house  including  the  mother,

children, sister and wife of the accused were living, such a brutal

offence of rape could not have been executed without attracting

the attention of anyone at that point of  time, would make the

prosecution version seriously improbable. We are of the view that

the doubtful and suspicious nature of the evidence sought to be

relied  upon  to  substantiate  the  circumstances  in  this  case

themselves  suffer  from  serious  infirmities  and  lack  of  legal

credibility to merit acceptance in the hands of the court of law.

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Having regard to the material  on record,  we find that there is

every possibility of false implication of the accused in this matter

to take revenge against the family of the accused because of the

longstanding disputes inter se between the two families.

23. The evidence of the victim/prosecutrix and the Aunt PW10

are unreliable, untrustworthy inasmuch as they are not credible

witnesses. Their evidence bristles with contradictions and is full

of improbabilities. We cannot resist ourselves to place on record

that the prosecution has tried to rope in the appellant merely on

assumptions,  surmises  and  conjectures.  The  story  of  the

prosecution is  built  on  the  materials  placed  on record,  which

seems to be neither the truth, nor wholly the truth. The findings

of the court below, though concurrent, do not desire the merit of

acceptance or approval in our hands with regard to the glaring

infirmities and illegalities vitiating them, and the patent errors

apparent  on the  face  of  record resulting  in  serious and grave

miscarriage of justice to the appellant.

24. We  find  that  the  Trial  Court  and  the  High  Court  have

convicted the accused merely on conjectures and surmises.  The

Courts have come to the conclusion based on assumptions and

not on legally acceptable evidence, but such assumptions were

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not  well  founded,  inasmuch  as  such  assumptions  are  not

corroborated by any reliable evidence. Medical evidence does not

support the case of the prosecution relating to offence of rape.

25. For the reasons aforementioned, the offence of rape does not

stand  proved.   Accordingly,  the  appellant  deserves  to  be

acquitted, by allowing this appeal. As mentioned supra, the first

accused – Jai Singh has already served out the sentence imposed

upon him, and the appellant before this Court has already served

the sentence of seven years’ out of the total sentence of ten years’

imposed upon him.

26.  The appeal is thus allowed, the appellant – Sham Singh is

acquitted  of  the  charges  levelled  against  him.   He  shall  be

released forthwith, if not required in any other case.

………………………………….J. [N.V. RAMANA]

NEW DELHI; ………………………………….J. AUGUST 21, 2018. [MOHAN M. SHANTANAGOUDAR]