REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2299 OF 2009

STATE (GOVT. OF NCT OF DELHI)       ….Appellant

VERSUS

PANKAJ CHAUDHARY AND ORS.        ….Respondents

With

CRIMINAL APPEAL NO.2298 OF 2009

J U D G M E N T

R. BANUMATHI, J.

These appeals arise out  of  the judgment  dated 05.05.2009

passed by the High Court  of  Delhi  in  Criminal  Appeal  No.384 of

2000 in and by which the High Court allowed the appeal filed by the

respondents/accused thereby setting aside their  conviction under

Section 376(2)(g) IPC passed by the trial court and the sentence of

imprisonment imposed upon them. By the impugned judgment, the

High Court also issued direction to lodge a complaint against the

appellants-police officials (CA No.2298/2009) for prosecuting them

under Sections 193 and 195 IPC.

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2. Case  of  prosecution  is  that  the  accused/respondents  who

were  living  in  the  neighbourhood  of  the  prosecutrix  (PW-1)  at

Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her

jhuggi at about 09.00 PM on 28.07.1997 and demanded a bidi from

her. She refused to give them any bidi. Thereafter, they demanded

water  which she again refused.  The prosecutrix  has alleged that

thereafter  respondents/accused  switched  off  the  electricity  and

accused/respondent No.2 Gunjesh Chaudhary caught hold of her

hands  and  the  other  three  accused  had  torn  her  clothes  and

committed rape on her in turn. The prosecutrix has alleged that she

raised  an  alarm and  fell  unconscious  thereafter.  On  hearing  the

alarm,  Bashira  Khatoon,  mother  of  the  prosecutrix  (PW-3)  came

there  and  saw  the  four  accused/respondents  coming  out  of  the

jhuggi.    Bashira  Khatoon  (PW-3)  found  the  prosecutrix  lying

unconscious inside the jhuggi. Police Control Room (PCR) van took

the prosecutrix  to  All  India  Institute  of  Medical  Sciences  (AIIMS)

hospital.  At  about  11.45  PM,  the  prosecutrix  was  medically

examined by Dr. Monika and it was noted in MLC (Ex.-PW6/A) that

there were "bruises of 4 x 4 cm on medial aspects of both thighs of

the prosecutrix". The blouse of the prosecutrix was found torn in the

back side along the left sleeve.  

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3. At  about  09.30 PM,  information was received in  the Police

Station, Hauz Khaz PCR/South District regarding some quarrel at

Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with

Constable Khushi Ram (PW-4) reached the spot and learnt that the

prosecutrix  was  taken  to  the  hospital  by  a  PCR  Van.  SI  Jai

Bhagawan (PW-7) along with the constable went to the AIIMS and

found PW-1 Phoola (Prosecutrix) there. Doctor declared PW-1 fit to

make  statement  and  SI  Jai  Bhagwan  recorded  her  statement

concerning  allegations  of  rape  by  the  accused/respondents.  The

statement  of  the  prosecutrix  was  recorded  at  02.30  AM  on

29.07.1997 and ruqqa for registration of the case under Section 376

IPC was sent  at  02.50  AM.  A case  under  FIR No.559/97  under

Section 376 IPC read with   Section 34 IPC was registered at 03.15

AM on 29.07.1997.

4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, the

prosecutrix was medically examined by Dr. Monika.  It was noted in

the MLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on the

medial aspects of both the thighs of the prosecutrix. The blouse was

torn along the back of the left sleeve and at the time of preparing

the  MLC  (Ex.-PW6/A);  the  clothes  of  prosecutrix  could  not  be

sealed since she did not have spare clothes.  Later her petticoat

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was collected and sent for chemical examination.  Upon completion

of  investigation,  charge  sheet  was  filed  against  the

accused/respondents.  

5. Charges were framed against the accused/respondents under

Section 376(2)(g)  IPC to  which they pleaded not  guilty.  To bring

home the  guilt  of  the  accused,  the  prosecution  examined seven

witnesses  and  exhibited  number  of  documents.  The

accused/respondents in their statement under Section 313 Cr.P.C.

stated that                            PW-1-Prosecutrix was of bad character

and  she  was  indulging  in  prostitution  and  they  have  lodged

complaint  against  her  and  therefore,  they  have  been  falsely

implicated in the rape case.  

6. Upon  consideration  of  evidence  of  PW-1-Prosecutrix  and

medical  report,  forensic report  and other evidence, the trial  court

convicted  accused/respondents  under  Section  376(2)(g)  IPC and

sentenced each of them to undergo rigorous imprisonment for ten

years.  Being  aggrieved,  the  accused/respondents  filed  appeal

before the High Court.   In the High Court, the accused/respondents

filed  petition  under  Section  391  Cr.P.C.  for  taking  additional

evidence which was allowed by the High Court. The High Court by

the  impugned  judgment  allowed the  appeal  by  setting  aside  the

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conviction of the accused/respondents under Section 376(2)(g) IPC.

The High Court held that regarding the ladies quarrel at 07.30 p.m.

on 28.07.1997 involving sex workers  including the prosecutrix  at

Shaheed Bhagat Singh Jhuggi,  FIR No.558/97 was registered and

in connection with the said FIR No.558/97, the prosecutrix and other

ladies were arrested and that they were in custody with the police till

at  least  09.30  PM. The  High  Court  therefore  doubted  the

prosecution  case  in  FIR  No.559/97  and  held  that  when  the

prosecutrix and other ladies were in custody with the police between

08.50 PM till 10.00 PM on 28.07.1997, it is quite impossible that the

occurrence  of  rape  would  have  taken  place  at  09.00  PM  on

28.07.1997 as alleged by the prosecutrix.

7. Based upon the Report of Joint Commissioner (Ex.-DW6/A)

and  the  Report  of  DCP,  the  High  court  directed  the  Registrar

General  of  the  High  Court  to  make  a  complaint  against  SI  Jai

Bhagwan        (PW-7), SI Prem Chand (DW-3) and Head Constable

Sagar Chand (DW-5) before the concerned court for prosecution for

the offences under Sections 193 and 195 IPC.  Being aggrieved by

the remarks made against them and also the direction to lodge a

complaint to initiate prosecution against them, SI Jai Bhagwan (PW-

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7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-

5) have preferred Criminal Appeal No.2298 of 2009.

8. The  learned  Additional  Solicitor  General  Mr.  Vikaramjit

Banerjee appearing on behalf  of appellant Govt.  of NCT of Delhi

has  submitted  that  the  High  Court  has  failed  to  appreciate  the

evidence of PW-1-Prosecutrix which is corroborated by the medical

evidence and the High Court erred in relying upon the events in FIR

No.558/97  and  erred  in  acquitting  the  respondents/accused.  The

learned Additional Solicitor General further submitted that the High

Court erred in relying upon the report  of the Joint Commissioner

(Ex.-DW6/A) and other materials produced at the time of arguments

and the High Court ought not to have proceeded on presumption

and conjectures  and  erred  in  not  appreciating  the  evidence  and

materials placed on record.

9. The learned senior counsel Mr. Mukul Gupta and Mr. Sanjay

R. Hegde appearing for the appellants-police have taken us through

the  evidence  and  other  materials  and  submitted  that  the  police

officials have correctly investigated the case and without giving an

opportunity  of  hearing,  the  High  Court  was  not  right  in  passing

disparaging  remarks  against  the  police  officials  and  issuing

directions to lodge a complaint against the appellants-police officials

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to initiate the prosecution under Sections 193 and 195 IPC which

have very serious consequences and impact on their official career.

10. Though  the  accused  initially  engaged  a  lawyer,  in  later

hearings of the appeal,  they were not represented.  Mr. Praveen

Chatruvedi  was  nominated  as  the  counsel  for  the  respondents

through  Supreme  Court  Legal  Services  Committee  who  made

meticulous submissions.  Contention of the respondents/accused is

that PW-1-Prosecutrix was in custody of police between 08.50 PM

to 10.00 PM on 28.07.1997 in connection with FIR No.558/97 under

Section 160 IPC and therefore, the alleged offence of gang rape

(FIR  No.559/97)  could  not  have  been  committed  by  the

respondents/accused in the manner alleged.  It is the contention of

the  respondents/accused  that  the  police  and  prosecutrix  have

conspired a plot of false rape case implicating the respondents and

the  High  Court  rightly  acquitted  the  accused/respondents  and

directed to initiate action against the police.

11. We  have  carefully  considered  the  submissions  of  the

respondents/accused  and  also  the  appellant/police  officials  and

perused the impugned judgment and materials on record.

12. PW-1-Prosecutrix has spoken about the occurrence of rape

committed  on  her  that  accused/respondent  No.2-Gunjesh

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Chaudhary caught hold of her hands and that other three accused

namely Pankaj Chaudhary, Qasim and Jai Lal Yadav had torn her

blouse and committed rape on her and that she raised alarm and

then her mother came there and the accused persons ran away.

Upon consideration of  evidence of  the prosecutrix,  the trial  court

held  that  there  is  no  reason  to  disbelieve  the  statement  of

prosecutrix where it is sufficiently corroborated by the statement of

Bashira  Khatoon,  mother  of  prosecutrix  (PW-3)  who  saw  the

accused leaving the jhuggi and identified two of them in the court.   

13. Evidence  of  the  prosecutrix  is  corroborated  by  the  MLC

(Ex.-PW6/A).  Dr. Monika who examined the prosecutrix noted in

MLC (Ex-PW6/A) that “the blouse of the prosecutrix was found to

be torn along the back of the left sleeve and bruises measuring 4 ×

4 cm were found on her both thighs”.   

14. Contention of  the respondents  is  that  when the prosecutrix

was forcibly held by the accused and gang raped, in all probability,

the prosecutrix must have sustained external injuries and absence

of  external  injuries  raises  serious  doubts  about  the  prosecution

version.   The  submission  of  the  accused/respondents  that  the

prosecutrix was not injured, was belied by the presence of bruises

measuring 4 × 4 cm on the medial aspects of both the thighs.  The

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blouse was torn along the back of left sleeve and such injuries were

possible by use of force.  Further, the version of the prosecutrix is

corroborated by MLC(Ex.-PW6/A) and that the injuries found could

be possible  by use of  force.   In  any event,  absence of  external

injuries does not  tantamount  to  consent  nor  does it  discredit  the

version of prosecutrix.

15. The evidence of the prosecutrix is also corroborated by FSL

Report (Ex.-PW7/G) which shows presence of human semen (Ex.-

1) on the petticoat of the prosecutrix.  As per the FSL Report (Ex.-

PW7/G),  blood was detected on Exhibits  3S1 (gauze cloth piece

having  brown  stains  labelled  ‘Pankaj’);  3S2 (gauze  cloth  piece

having brown stains labelled ‘Qasim’); and 3S3 (gauze cloth piece

having brown stains labelled ‘Jai Lal’).  The result of the biological

report reads as under:-

Exhibits Species of Origin

ABO Group Remarks

3S1 (gauze cloth piece having brown stains labelled ‘Pankaj’)

Inconclusive

3S2 (gauze cloth piece having brown stains labelled ‘Qasim’)

Inconclusive

3S3 (gauze cloth piece having brown stains labelled ‘Jai Lal’)

‘B’ Group

Semen  Status  (Ex.-1-petticoat  of  the prosecutrix)

‘B’ Group

The presence of semen status of ‘B’ group on the petticoat of the

prosecutrix which matches with the blood ‘B’ group of accused Jai

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Lal (3S3) corroborates the version of the prosecutrix.  Of course, the

Serology Report on Exhibits 3S1 (gauze cloth piece having brown

stains  labelled  ‘Pankaj’);  3S2  (gauze  cloth  piece  having  brown

stains  labelled  ‘Qasim’)  remained  inconclusive;  probably  due  to

disintegration  of  the  sample.   Such  disintegration  of  the  sample

does not dilute the version of the prosecutrix.

16. The  FSL Report  (Ex.-PW7/G)  was  discarded  by  the  High

Court primarily on the ground that in MLC (Ex.-PW6/A), it is stated

that “the clothes could not be sealed as patient does not have extra

clothes” which according to the High Court was inconsistent with the

statement of SI Jai Bhagwan (PW-7) that “Duty Constable of the

hospital  produced  before  me  two  sealed  parcels  containing

petticoat and slides which was sent to the FSL”.  It is pertinent to

note that the prosecutrix was examined by the doctor at 11.45 PM

on  28.07.1997;  whereas  SI  Jai  Bhagwan  (PW-7)  after  getting

statement from the doctor as to the fit mental state of prosecutrix

has  recorded  the  statement  of  the  prosecutrix  at  02.30  AM  on

29.07.1997.   In  her  evidence  during  cross-examination,  the

prosecutrix has stated that the petticoat that she was wearing at the

time of  incident was seized by the police.   Having regard to the

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evidence of the prosecutrix, we find no inconsistency between MLC

(Ex.-PW6/A) and the statement of SI Jai Bhagwan (PW-7).

17. Drawing  our  attention  to  the  evidence  of  prosecutrix  who

submitted that the prosecutrix regained consciousness only at 10.00

AM on 29.07.1997 and while so SI Jai Bhagwan could not have

recorded  her  statement  at  around  02.30  AM  on  29.07.1997  as

stated  by  him  and  this  again  throws  serious  doubt  about  the

prosecution  case.  The  prosecutrix  (PW-1)  was  examined  in  the

court on 05.11.1999 nearly two years after the occurrence and she

might not have been able to recollect the happenings as it is. It is

also pertinent to note that SI Jai Bhagwan (PW-7) has enquired the

Doctor and the Doctor has declared that prosecutrix was fit to make

the statement and only thereafter the statement of prosecutrix (PW-

1) was recorded                  (Ex.-PW1/A). In the light of the evidence

of SI  Jai  Bhagwan that  the Doctor declared the prosecutrix fit  to

make  the  statement,  there  is  no  merit  in  the  contention  of  the

accused  raising  doubts  about  the  recording  of  statement  of  the

prosecutrix at 02.30 AM on 29.07.1997.

18. On  the  next  day  i.e.,  on  29-07-1997  all  the

accused/respondents were arrested by SI Jai Bhagwan (PW-7) and

they were medically examined in the hospital between 11.36 AM to

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11.38 AM and the doctor opined that “on clinical examination, there

is nothing to suggest that the said accused persons are incapable

of performing sexual intercourse”. The blood samples and the slide

of smear of the accused were also seized and the case property

was deposited in the malkhana from where it was sent to FSL.  As

pointed out earlier,  the FSL Report (Ex.-PW7/G) showed that the

semen  stains  were  found  on  the  petticoat  of  the  prosecutrix  (B

group)  which  matched  with  the  blood  group  of  the

accused/respondent No.4-Jai Lal Yadav.

19. It  is  also  relevant  to  refer  to  the  false  explanation  of  the

accused in their statement under Section 313 Cr.P.C.  Though the

accused have  admitted  about  their  medical  examination,  in  their

statement under Section 313 Cr.P.C. all the accused have given a

false version regarding the manner and time of arrest as after 04.00

PM on 29.07.1997.  The statement of the accused that they were

arrested only after 04.00 PM on 29.07.1997 is not consistent with

the materials placed on record that they were medically examined

between  11.36  AM  to  11.38  AM  on  29.07.1997.  The  false

explanation by the accused is yet another militating circumstance

against them.

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20. Further, as pointed out by the trial court, the prosecutrix had

no motive to falsely implicate the accused.  In their statement under

Section 313 Cr.P.C., the respondents/accused have stated that the

prosecutrix  was  of  bad  character  and  she  was  indulging  in

prostitution regarding which they have lodged complaint against her

and they have been falsely implicated in the case.  As pointed out

by the trial court, nothing was brought on record by the accused to

show  that  they  have  lodged  complaint  against  the  prosecutrix.

Mahanand Jha (DW-1) stated that he is the President of the jhuggi

area.   He  further  stated  that  about  7-8  women  including  the

prosecutrix have been indulging in prostitution regarding which he

has lodged the complaint.  There is nothing on record to suggest

that  the  accused  were  in  any  way  involved  in  making  such

complaints against the prosecutrix and other women.  The version

that  they lodged complaint  against  the prosecutrix  and therefore,

they have been falsely implicated in the case, is not substantiated

by any record.

21. The High Court observed that the trial court erred in saying

that the accused failed to prove the making of previous complaints

against the prosecutrix. While saying so, the High Court referred to

certain complaints made against the prosecutrix including the one

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allegedly given on 21.07.1997 which were produced by the Bar at

the  time  of  arguments.  The  power  conferred  under  Section  391

Cr.P.C. is to be exercised with great care and caution. In dealing

with  any  appeal,  the  appellate  court  can  refer  to  the  additional

evidence only if  the same has been recorded as provided under

Section 391 Cr.P.C.   Any material  produced before the appellate

court to fill-up the gaps by either side cannot be considered by the

appellate court; more so, to reverse the judgment of the trial court.

As rightly contended by the learned Additional Solicitor General, the

High Court has taken into consideration the materials produced by

the Bar, namely, complaints allegedly made against the prosecutrix

and other women including the one allegedly given on 21.07.1997

just one week prior to the incident. The High Court was not right in

taking into consideration those complaints produced at the time of

arguments in the appeal.

22. As rightly held by the trial court that even if the allegations of

the accused that the prosecutrix is of immoral character are taken to

be correct, the same does not give any right to the accused persons

to  commit  rape  on  her  against  her  consent.   In  State  of

Maharashtra  and  Another  v.  Madhurkar  Narayan  Mardikar

(1991) 1 SCC 57, it was held that even a woman of easy virtue is

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entitled to privacy and it is not open to any person to violate her and

she is equally entitled to protection of law.  Further, the evidence of

such a woman cannot be thrown overboard merely because she is

a woman of easy virtue.

23. Even in cases where there is some material to show that the

victim was habituated to sexual intercourse, no inference like the

victim being a woman of ‘loose moral character” is permissible to be

drawn from that circumstance alone. A woman of easy virtue also

could not be raped by a person for that reason. In State of Punjab

v. Gurmeet Singh and Others (1996) 2 SCC 384, it was held as

under:-

“16.  ……Even  if  the  prosecutrix,  in  a  given  case,  has  been promiscuous in  her  sexual  behaviour  earlier,  she  has a  right  to refuse  to  submit  herself  to  sexual  intercourse  to  anyone  and everyone because she is not a vulnerable object or prey for being sexually  assaulted  by  anyone  and  everyone……”(Emphasis supplied) [Underlining added].

While  so,  the  High  Court  erred  in  placing  reliance  upon  the

complaints  allegedly  made  against  the  prosecutrix  to  doubt  her

version and to hold that a false case has been foisted against the

accused.

24. It  is now well-settled principle of law that conviction can be

sustained  on  the  sole  testimony  of  the  prosecutrix  if  it  inspires

confidence.  [Vishnu alias Undrya v. State of Maharashtra (2006)

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1 SCC 283]. It is well-settled by a catena of decisions of this Court

that  there  is  no rule  of  law or  practice  that  the  evidence  of  the

prosecutrix cannot be relied upon without corroboration and as such

it has been laid down that corroboration is not a  sine qua non for

conviction in a rape case.  If  the evidence of the victim does not

suffer from any basic infirmity and the ‘probabilities factor’ does not

render it unworthy of credence, as a general rule, there is no reason

to  insist  on  corroboration  except  from  medical  evidence,  where,

having regard to the circumstances of the case, medical evidence

can be expected to be forthcoming.  [State v. N.K. The accused

(2000) 5 SCC 30]

25. The  trial  court  which  had  the  opportunity  of  seeing  and

observing the prosecutrix,  found the testimony of  the prosecutrix

reliable  being  corroborated  by  her  mother’s  evidence,  medical

evidence,  FSL  report  and  other  circumstances  viz.  absence  of

motive for any false implication etc.   While so, the High Court ought

not to have heavily interfered with the verdict of conviction based on

the  alleged  time  gap  in  the  registration  of  two  FIRs  and  other

aspects of investigation in connection with FIR No.558/97 to reverse

the verdict of conviction.

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26. The High Court reversed the verdict of conviction mainly on

the  ground  of  difference  of  timing  in  the  registration  of  FIR

No.558/97 and other aspects of investigation.  At about 08.05 PM, a

telephonic  information  was  received  vide DD  No.67-B  at  Police

Station Hauz Khas regarding a quarrel at Shaheed Bhagat Singh

Jhuggi.  The specific case of the defence is that the prosecutrix was

in police custody in FIR No.558/97 under Section 160 IPC till about

10.00  PM.  As  per  the  deposition  of  SI  Prem Chand (DW-3),  he

reached  the  spot  with  one  lady  constable  Ms.  Sarla  Toppo  and

Constable Sagar Chandra (DW-5) at around 08:18 PM and found

the ladies including prosecutrix quarrelling at public place in their

jhuggis  and  immediately  arrested  the  ladies  and  conducted

investigation and sent the ruqqa with a constable to register the FIR

under Section 160 IPC.  On receipt of information, FIR No.558/97 at

Police  Station  Hauz  Khas  was  registered  at  09.20  PM  on

28.07.1997.  SI  Prem Chand (DW-3)  stated about  the arrest  and

search of four women and then released them on bail bonds and he

was on the spot up to 08:50 PM.   

27. The High Court  relied on the statement of  Head Constable

Ratan  Lal  (DW-4)  that  SI  Prem  Chand  (DW-3)  has  made  a

telephonic call at 08:52 PM to know the serial number of the case

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and because the FIR was registered at 09:20 PM, the High Court

came  to  the  conclusion  that  the  women  involved  in  the  FIR

No.558/97 could not have been released before 09:20 PM because

one of the bail bonds contain the said FIR number and also held

that it is highly unlikely for the police to have completed all the steps

referred to above in respect of each of the four women and released

them by 08:52 PM and as per the site plan drawn in FIR No.559/97,

the  distance  between  the  road  and  jhuggi  is  such  that  it  was

impossible for the prosecutrix to come back alone and be in her

jhuggi at 09.00 PM.   

28. The  occurrence  of  rape  (FIR  No.559/97)  was  at  about

09.00 PM regarding which information was received by the same

Police  Station  Hauz Khas at  about  09.30  PM.   SI  Jai  Bhagwan

(PW-7) along with constable Khushi Ram (PW-4) reached the spot

and learnt that the prosecutrix was taken to hospital by PCR Van.

Thereafter,  SI  Jai  Bhagwan  (PW-7)  along  with  constable  Khushi

Ram (PW-4) went to AIIMS and found the prosecutrix there and he

recorded her statement at 02.30 AM on 29.07.1997 after getting the

certificate from the doctor.  Ruqqa for registration of the case under

Section  376  IPC  was  sent  at  02.50  AM  and  case  under  FIR

18

No.559/97 under Section 376 IPC read with Section 34 IPC was

registered at 03.15 AM on 29.07.1997.

29. After referring to the timings of FIR No.558/97, the High Court

held  that  the  quarrelling  ladies  including  the  prosecutrix  were  in

custody  of  the  police  at  least  till  08.50  PM  and  it  was  highly

improbable  that  the  prosecutrix  could  have  come back  and  was

alone  in  her  jhuggi  at  09.00  PM  on  28.07.1997  and  that  the

respondents/accused  entered  her  jhuggi  and  committed  rape  as

alleged by her and that even before 09.30 PM, she was picked up

from there by PCR Van.  The High Court therefore concluded that

SI Jai Bhagwan, constable Khushi Ram (PW-4) and the prosecutrix

(PW-1)  have  fabricated  false  case  against  the  accused.   In  this

regard,  the  High  Court  relied  upon  the  Report  of  Joint

Commissioner  dated  07.11.2000  (Ex.-DW6/A)  and  the  Report  of

S.K. Gautam, DCP.

30. The reasoning of the High Court that the ladies were arrested

in connection with FIR No.558/97 under Section 160 IPC and that

the ladies must have remained with the custody of police till 09.20

PM proceeds on presumptive footing and surmises. In his evidence,

Mahanand Jha (DW-1) has stated that “the said ladies came back

to  the area at  08.30 PM and started abusing the neighbourers”.

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Likewise, Sharabuddin (DW-2) has stated that “the police released

the said ladies including Phoola (PW-1) and after coming back to

her jhuggi, she started abusing the neighbours.  Then, I informed

PCR Van on telephone and PCR Van came and took Phoola……..”.

The High Court failed to appreciate the testimonies of DWs 1 and 2

who have categorically stated that the prosecutrix had come back

and was abusing neighbours.  The evidence of DWs 1 and 2 clearly

shows that  the prosecutrix  was let  out  by the police at  or  about

08.20  PM on  28.07.1997.   Mere  fact  that  FIR  No.558/97  under

Section 160 IPC was registered at 09.20 PM does not indicate that

the  prosecutrix  and  other  quarrelling  ladies  were  in  the  police

custody till 09.30 PM on 28.07.1997 (with respect to the offence in

FIR No.558/97).

31. There were two sets of persons and two sets of officers are

involved  in  FIR  No.558/97  and  FIR  No.559/97.    The  aspect

regarding                      FIR No.558/97 was not put to the witnesses

even before the trial court. Everything was brought about in appeal

as additional  evidence in  exercise of  the power  of  the appellate

court under Section 391     Cr. P.C.  Placing of heavy reliance by the

High Court upon the contents in FIR No.558/97 was not a correct

approach.  

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32. Unfortunately,  the  High  Court  was  swayed  by  the

Departmental  Enquiry  Report  (Ext.-DW6/A) prepared  by  Joint

Commissioner of Police that was brought on record by Constable

Dharamvir  Singh  (DW-6).  Going  through  the  entire  report,  we

observe that the departmental enquiry was primarily based on the

diary entries and the statements of one complainant Amod Shastri

and  statement  of  ASI  Kamal  Dev.    In  the  report,  Joint

Commissioner of Police,  inter-alia concluded that the rape incident

could not have happened at 09.00 PM while SI Prem Chand (DW-3)

indicated  that  quarrelling  ladies  including  the  prosecutrix  were

released  at  08.50  PM.   It  is  pertinent  to  note  that  neither  S.K.

Gautam,  Deputy  Commissioner  of  Police  was  examined  nor  the

said complainant Amod Shastri and ASI Kamal Dev were examined.

Yet the High Court relied on it to come to a conclusion that the rape

incident could not have happened at the alleged time and manner.  

33. ASI  Kamal  Dev who took the prosecutrix  to  the hospital  in

PCR Van is said to have made the statement before the Deputy

Commissioner  of  Police  stating  that  when  he  questioned  the

prosecutrix, she was conscious and that she told him that she had

been  beaten  up  and  has  not  stated  anything  about  the  alleged

incident of rape. In our view, the High Court was not right in placing

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heavy reliance upon the report of the Joint Commissioner and the

report of Deputy Commissioner who were not examined before the

court.  

34. Based upon the report of Joint Commissioner of Police (Ex.-

DW6/A) and the report of S.K. Gautam, DCP, the High Court made

disparaging  remarks  against  the  police  officials  and  directed

prosecution against  the police under  Sections 193 and 195 IPC.

The police officials were neither party nor summoned by the High

Court before making such disparaging remarks and giving directions

against them in the appeal against the conviction. On behalf of the

police officials,  it  is  submitted that  the conclusions drawn by the

High Court  are based on mere surmises and presumptions.  The

High Court further relied on the Departmental Enquiry Report (Ex.-

DW6/A) which was not put to test and the maker of the report was

not examined which therefore has no evidentiary value in the eyes

of law.  

35. While passing disparaging remarks against the police officials

and directing prosecution against them, in our considered view, the

High Court has failed to bear in mind the well settled principles of

law  that  should  govern  the  courts  before  making  disparaging

remarks.  Any  disparaging  remarks  and  direction  to  initiate

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departmental  action/prosecution  against  the  persons  whose

conduct  comes  into  consideration  before  the  court  would  have

serious impact on their official career. In  S.K. Viswambaran v. E.

Koyakunju  and  Others (1987)  2  SCC  109,  this  Court  held  as

under:-

“9. Stung  by  the  remarks  made  against  him  without  even  a hearing………….”.

13. We  have  also  to  point  out  a  grievous  procedural  error committed by the High Court. Even assuming for argument’s sake that for expunging the remarks against Respondents 2 and 3 the conduct  of  the  appellant  required  scrutiny  and  merited  adverse comment, the principles of natural justice required the High Court to have issued notice to the appellant and heard him before passing adverse remarks against him if it was considered necessary. By its failure the High Court has failed to render elementary justice to the appellant. 14. ………..In State of U.P. v. Mohd. Naim AIR 1964 SC 703, it was held as follows:

“If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions  freely  and  fearlessly  and  without  undue interference by anybody,  even by this  Court.  At  the same time, it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not  infrequent  that  sweeping  generalisations  defeat the very purpose for which they are made. It has been judicially  recognised  that  in  the  matter  of  making disparaging  remarks  against  persons  or  authorities whose  conduct  comes  into  consideration  before courts  of  law in  cases to  be decided by them, it  is relevant  to  consider  (a)  whether  the  party  whose conduct is in question is before the court or has an opportunity  of  explaining  or  defending  himself;  (b) whether there is evidence on record bearing on that conduct  justifying the remarks; and (c)  whether it  is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been  recognised  that  judicial  pronouncements  must

23

be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”

This ratio has been followed in R.K. Lakshmanan v. A.K. Srinivasan and  Another  (1975)  2  SCC  466  and  Niranjan  Patnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569 (to which one of us was a party). Judged in the light of the above tests, it may be seen that none of the tests is satisfied in this case.  It  is  indeed regrettable that the High Court should have lightly passed adverse remarks  of  a  very  serious  nature  affecting  the  character  and professional competence and integrity of the appellant in purported desire to render justice to Respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them.” [Underlining added].

36. In Manish Dixit and Others v. State of Rajasthan (2001) 1

SCC 596, this Court held as under:-

“42. ………Such disparaging remarks and the direction to initiate departmental action against him could have a very serious impact on his official career. 43. Even  those  apart,  this  Court  has  repeatedly  cautioned  that before any castigating remarks are made by the court against any person,  particularly  when  such  remarks  could  ensure  serious consequences on the future career of  the person concerned, he should have been given an opportunity of being heard in the matter in  respect  of  the  proposed  remarks  or  strictures. Such  an opportunity is the basic requirement,  for,  otherwise the offending remarks would be in violation of the principles of natural justice. In this case such an opportunity was not given to PW 30 (Devendra Kumar Sharma). (State of U.P. v.  Mohd. Naim  AIR 1964 SC 703, Ch. Jage Ram, Inspector of Police and Another v. Hans Raj Midha (1972)  1  SCC  181,  R.K.  Lakshmanan v.  A.K.  Srinivasan  and Another  (1975) 2 SCC 466,  Niranjan Patnaik v.  Sashibhusan Kar and Another (1986) 2 SCC 569 and State of Karnataka v. Registrar General,  High  Court  of  Karnataka  (2000)  7  SCC  333).” [Underlining added]

Since  the  High  Court  has  passed  strictures  against  the  police

officials who were involved in the investigation in FIR No.559/1997

without affording an opportunity of hearing to them, the disparaging

remarks are liable to be set aside.

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37. Insofar  as  the  direction  to  initiate  the  prosecution  under

Sections 193, 195 and 211 IPC is concerned, Section 340 Cr.P.C.

provides the procedure for offences enumerated in Section 195(1)

(b)  Cr.P.C.   The  object  of  Section  340  Cr.P.C.  is  to  ascertain

whether  any offence affecting administration of  justice  has been

committed in relation to any document produced or evidence given

in court  during the time when the document or  evidence was in

custodian  legis and whether it is also expedient in the interest of

justice to take such action as required under Section 340 Cr.P.C.

38. Before directing the prosecution to be initiated under Section

195 Cr.P.C., the court has to follow the procedure under Section

340          Cr.P.C. and record a finding that “it is expedient in the

interest of justice……..”.  Though wide discretion is given to court

under Section 340 Cr.P.C., the same has to be exercised with care

and caution. To initiate prosecution under Section 195 Cr.P.C too

readily that too against the police officials who were conducting the

investigation  may  not  be  a  correct  approach.  Contention  of  the

learned counsel for the police officials is that before passing the

direction to initiate the prosecution for the offences under Sections

193, 195 and 211 IPC, the High Court ought to have followed the

procedure contemplated under Section 340(1) Cr.P.C.

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39. Section 340(1) Cr. P.C. reads as under:-

340. Procedure in cases mentioned in Section 195 – (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of sub-section  (1)  of  Section  195,  which  appears  to  have  been committed in or in relation to a proceeding in that Court or, as the case  may  be,  in  respect  of  a  document  produced  or  given  in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-

(a)  record a finding to that effect; (b)  make a complaint thereof in writing; (c) send  it  to  a  Magistrate  of  the  first  class  having

jurisdiction; (d)  take sufficient security for the appearance of the accused

before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e)  bind  over  any  person  to  appear  and  give  evidence before such Magistrate.

There are two preconditions for initiating proceedings under Section

340 Cr. P.C. :

(i) materials produced before the court must make out  a  prima-facie  case  for  a  complaint  for  the purpose of inquiry into an offence referred to in clause  (b)(i)  of  sub-section  (1)  of  Section  195 Cr.P.C. and

(ii) it  is expedient in the interests of justice that an inquiry should be made into the alleged offence.

40. Observing that the court has to be satisfied as to the prima-

facie case for a complaint for the purpose of inquiry into an offence

under Section 195(1)(b) Cr.P.C., this Court in  Amarsang Nathaji

as himself and as karta and manager v. Hardik Harshadbhai

Patel and Others (2017) 1 SCC 113 held as under:-

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“6. The  mere  fact  that  a  person  has  made  a  contradictory statement in a judicial proceeding is not by itself always sufficient to justify  a  prosecution  under  Sections  199  and  200  of  the  Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must be shown that the defendant has intentionally given a false statement  at  any stage  of  the  judicial  proceedings or  fabricated false evidence for the purpose of using the same at any stage of the  judicial  proceedings.  Even  after  the  above  position  has emerged  also,  still  the  court  has  to  form  an  opinion  that  it  is expedient  in the interests of  justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. and Another v.  Union of India (1992) 3 SCC 178). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case. 7. In  the  process of  formation  of  opinion  by  the  court  that  it  is expedient in the interests of justice that an inquiry should be made into,  the  requirement  should  only  be  to  have  a  prima  facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under  Section  340  CrPC  has  been  committed,  the  court  may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not  mandatory  that  a  complaint  should  be  filed  as  a  matter  of course. (See  Pritish v.  State of Maharashtra and Others  (2002) 1 SCC 253) 8. In  Iqbal Singh Marwah and Another v.  Meenakshi Marwah and Another (2005) 4 SCC 370, a Constitution Bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals with the relevant consideration:  

“23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1) (b), as the section is conditioned by the words “court is  of  opinion  that  it  is  expedient  in  the  interests  of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that  it  is  expedient  in  the  interests  of  justice  that enquiry  should  be  made  into  any  of  the  offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has

27

upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence  produced  or  given  in  evidence  in  court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such  circumstances,  the  court  may  not  consider  it expedient  in  the  interest  of  justice  to  make  a complaint.”

The same principle was reiterated in Chintamani Malviya v. High

Court of Madhya Pradesh (2018) 6 SCC 151.  

41. It has been consistently held by this Court that prosecution for

perjury  be  sanctioned  by  the  courts  only  in  those  cases  where

perjury appears to be deliberate and that prosecution ought to be

ordered  where it  would be expedient in the interest of justice to

punish  the  delinquent  and  not  merely  because  there  is  some

inaccuracy in  the statement.  In  Chajoo Ram v.  Radhey Shyam

and Another (1971) 1 SCC 774, this Court held as under:-  

“7. The prosecution for perjury should be sanctioned by courts only in  those  cases  where  the  perjury  appears  to  be  deliberate  and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its  very  purpose.  Prosecution  should  be  ordered  when  it  is considered  expedient  in  the  interests  of  justice  to  punish  the delinquent and not merely because there is some inaccuracy in the statement  which  may be innocent  or  immaterial.  There  must  be prima facie case of deliberate falsehood on a matter of substance and  the  court  should  be  satisfied  that  there  is  reasonable foundation for the charge. In the present case we do not think the material  brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a

28

complaint.  The  approach  of  the  High  Court  seems  somewhat mechanical and superficial: it does not reflect the requisite judicial deliberation….”

42. By perusal of the impugned judgment of the High Court, we

find  that  the  High  Court  has  not  recorded  a  finding  that  “it  is

expedient  in  the interest  of  justice  to  initiate  an inquiry  into  the

offences punishable under Sections 193 and 195 IPC against the

police officials and under Section 211 IPC against the prosecutrix”.

Without affording an opportunity of  hearing to the police officials

and based on the materials produced before the appellate court,

the High Court, in our view, was not right in issuing direction to the

Registrar General to lodge a complaint against the police officials

and the said direction is liable to be set aside.

43. The High Court erred in brushing aside the evidence of the

prosecutrix  by substituting its  views on the basis  of  submissions

made on the sequence of events in FIR No.558/97 and the report of

the Joint Commissioner of Police (Ex.-DW6/A) and the report of the

Deputy Commissioner of Police. The High Court erred in taking into

consideration the materials produced before the appellate court viz.,

the  alleged  complaints  made  against  the  prosecutrix  and  other

women  alleging  that  they  were  engaged  in  prostitution.  Even

assuming that the prosecutrix was of easy virtue, she has a right of

refuse  to  submit  herself  to  sexual  intercourse  to  anyone.  The

29

judgment of the High Court reversing the verdict of conviction under

Section 376(2)(g) recorded by the trial  court cannot be sustained

and is liable to be set aside.  

44. For the conviction under Section 376(2)(g) IPC, the accused

shall be punished with rigorous imprisonment for a term which shall

not  be  less  than  ten  years,  but  which  may  be  extended  to

imprisonment for life. After the amendment by Act 13 of 2013 (with

retrospective effect from 03.02.2013), the minimum sentence of ten

years was increased to twenty years as per Section 376-D and in

the case of conviction, the court has no discretion but to impose the

sentence of minimum twenty years.  However, prior to amendment,

proviso to Section 376(2) IPC provided a discretion to the court that

“the court may, for adequate and special reasons to be mentioned

in the judgment, impose a sentence of imprisonment for a term of

less than ten years.”  Though the court is vested with the discretion,

in the facts and circumstances of the case, we are not inclined to

exercise our discretion in reducing the sentence of imprisonment of

ten years imposed upon the respondents-accused.

45. In the result, the impugned judgment of the High Court is set

aside and the appeal preferred by the State is allowed.   The verdict

of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009)

30

under Section 376(2)(g) IPC and also the sentence of imprisonment

of  ten years  imposed upon them is  affirmed.   The  respondents-

accused Nos.1 to 4 shall surrender themselves within a period of

four  weeks  from  today  to  serve  the  remaining  sentence,  failing

which  they shall  be taken  into  custody.  We place on  record the

valuable  assistance  rendered  by  the  counsel  Mr.  Praveen

Chaturvedi who has been nominated by the Supreme Court Legal

Services Committee to argue on behalf of the respondents/accused.

46. The direction of the High Court to lodge complaint against the

police officials (appellants in Criminal Appeal No.2298 of 2009) is

set aside and the appeal preferred by them is allowed.

…………….……………J.  [R. BANUMATHI]

…………….……………J.      [INDIRA BANERJEE]

New Delhi; October 30, 2018

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