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            REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs.2066-67 OF 2009

Narender Kumar …Appellant

Versus

State (NCT of Delhi)                      …Respondent                      

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. These  appeals  have  been  preferred  against  the  impugned  

judgment and order dated 25.3.2009 passed by the High Court of Delhi  

at  New Delhi  in  Criminal  Appeal  No.53  of  2000,  by  which  it  has  

affirmed  the  judgment  and  order  of  the  trial  Court  dated  7.12.1999  

passed  in  Sessions  Case  No.  77/99,  convicting  the  appellant  under  

Section 376 of Indian Penal Code, 1860 (hereinafter called ‘IPC’) and  

awarded the punishment  of  rigorous imprisonment  for  a  period of  7  

years vide order dated 8.12.1999 and imposed a fine of Rs.2000/- .

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2. Facts and circumstances giving rise to this case are that:

A.  Smt. Indira PW.1 (prosecutrix) filed an FIR No.886/98 dated  

16.9.1998 to the effect that when she was going from village Khirki to  

Chirag Delhi on that day at about 8 p.m., the appellant met her near  

Ganda Nala, he caught hold of her hand and dragged her towards the  

bushes on the edge of the road and committed rape on her.  She could  

not raise the noise due to fear. After commission of the offence, the  

appellant  left  her  there  and ran away.   The prosecutrix  went  to  her  

husband at his working place and from there went to the police station  

alongwith her husband to lodge the FIR.

B. The  prosecutrix  was  medically  examined.  Appellant  was  

arrested on 1.11.1998. Statement of the prosecutrix was recorded under  

Section 164 of Code of Criminal Procedure, 1973 (hereinafter called  

‘Cr.P.C.’)  on  20.11.1998  before  the  Metropolitan  Magistrate,  New  

Delhi.  After completion of investigation, charge sheet was filed against  

the  appellant  under  Section  376  IPC  on  21.4.1999.   Prosecution  

examined 11 witnesses in support of its case.  The appellant, in addition  

to  his  own  statement  under  Section  313  Cr.P.C.,  also  examined  2  

witnesses in  defence.   

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C. On  conclusion  of  the  trial,  the  learned  Sessions  Court  vide  

judgment and order dated 7/8.12.1999 convicted the appellant for the  

offences under Section 376 IPC and imposed the sentence as referred to  

hereinabove.

D. Aggrieved, the appellant preferred Criminal Appeal No.53 of  

2000 before the High Court which has been dismissed vide impugned  

judgment and order dated 25.3.2009.   

Hence, these appeals.

3. Shri Yakesh Anand, learned Amicus Curiae, has submitted that  

Indira,  prosecutrix (PW.1) cannot be relied upon because there have  

been material contradictions in her deposition. She had been confronted  

on large number of issues/facts with her statement under Section 161  

Cr.P.C.   Embellishments/improvements  had  been  of  such  a  large  

magnitude that her statement itself became unreliable.  The prosecutrix  

was an unchaste woman, having illicit relationship with many young  

persons.    The  courts  below  erred  in  not  appreciating  properly  the  

evidence  of  the  defence  witnesses  examined  by  the  appellant.   The  

medical evidence,  in a case like this where the prosecutrix was married  

and 25 years of age, is inconsequential.  Thus, the appeals deserve to be  

allowed.  

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4. Per contra, Smt. Rekha Pandey, learned counsel appearing for  

the  respondent-State  has  opposed  the  appeal  vehemently  contending  

that the appellant has rightly been convicted on the sole testimony of  

the prosecutrix and both the courts below have appreciated the facts in  

correct perspective.  The findings so recorded by the courts below do  

not  warrant  any  interference.   Thus,  the  appeals  are  liable  to  be  

dismissed.

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

6. The Trial Court as well as the High Court  recorded conviction  

of  the appellant merely placing a very heavy reliance on the deposition  

of the prosecutrix  and considering the deposition of Dr. Nisha (PW.9).  

Admittedly, the defence version taken by the appellant in his statement  

under Section 313 Cr.P.C. and the deposition of two defence witnesses  

to  the  extent  that  the  prosecutrix  had  developed  intimacy  with  the  

appellant  and some other  young persons  and Sahib Rao (PW.3)  her  

husband, had raised the grievance in this regard, have not even been  

referred to by either of the courts below, though the law required the  

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court  to  appreciate  the  defence  version  and  decide  its  veracity  in  

accordance with law.   

7. In order to test the veracity of the deposition of Smt. Indira –

Prosecutrix (PW.1), it may be relevant to make reference to the same.  

In her examination-in-chief  she stated as under:

“The accused was not personally known to me prior   to the day of incident, except that he had teased me   prior to the incident and I lodged the complaint with   the parents of the accused and with the police.  I have   not given any copy of the complaint to the police in   this case.  It is incorrect to say that the accused had   been living in my house about one year prior to the   day of the incident.”     

In cross-examination she could not point out as which part of her  

Salwar had been torn.  Prosecutrix, when in the dock was confronted on  

various points with her statement under Section 161 Cr.P.C. and the  

said contradiction read as under:

(i)   I had also told the police in my statement that I had raised  

alarm at the time of rape.

(ii)     The accused was not personally known to me prior to the  

date  of  the  incident  except  that  he  had  teased  me  prior  to  the  

incident and I lodged the complaint with the parents of the accused  

and with the police.   

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       So far as the “injury on her person” is concerned, she deposed as  

under:  

“I did not receive any injury except scratches on my   throat and I had told the doctor about the incident.”  

8.  Sahib Rao (PW.3),  husband of  the prosecutrix  in  his  cross-

examination admitted that he knew the appellant very well as  

both of them had been the residents  of the same village. He  

further admitted that there used to be quarrel between him and  

his  wife.   Sahib  Rao  (PW.3),  was  also  confronted  with  his  

statement under Section 161 Cr.P.C. on various narrations.

9. Dr. Nisha (PW.9) deposed as under:  

“There were nail marks on her breast and from that I   say that  she might have been raped. The nail marks  which were found on the  breast of the victim could  have been self-inflicted….On internal examination of   the victim,  it could not be found that she was raped  except seeing her condition that her clothes were torn   and there were  nail marks on her breast.”

                                                                        (Emphasis added)

10. SI, Lekh Raj (PW.6) who was posted at P.S. Malviya Nagar,  

New Delhi  was examined and he deposed as under:  

“On the night intervening 30.10.1998 and 1.11.1998 ,   complainant  Indira  came  to  the  P.S.  at  about  11.45   

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p.m. She told me that the person who had committed   rape on her is sitting on a stop of Khirki. Thereafter, I   alongwith  complainant   and  Constable  Jagat  Singh   went there and accused present in court was arrested   on the pointing out of Indira by me…..The arrest memo   of accused Ex.PW.1/F was also prepared…..

…………No  public  person  from  the  area  was  called   from where the accused was arrested. I did not prepare   the site plan of the place from where the accused was   arrested.  The prosecutrix Indira had come to me on   that  night  in  the  police  station  alone.  The  distance   between the house of the prosecutrix and police station   is 3 Kms.”  

11. R.N. Chowdhary (PW.11),  Investigating Officer  deposed that  

there  was  fencing  just  near  the  road  and  there  was  electricity  pole  

installed  at  the divider  of  the road and the electricity  was  on.   The  

residential houses were at some distance and the road was situated at a  

distance of about 20 paces from the place of occurrence.

12. The appellant in his statement under Section 313 Cr.P.C. stated  

as under:

“I  was  having  good  relations  with  family  of  the   prosecutrix and we were staying in the same village.   The  prosecutrix desired to keep me in her house, to  which I refused and for that reason, the false case has   been planted on me.  I am innocent and I have been   falsely implicated in this case by police at the instance   of the prosecutrix and her husband as I did not accept   the proposal of the prosecutrix to live in her house. Her   

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husband  has  also  given  severe  beatings  to  the   prosecutrix on that account.”             (Emphasis added)

13. Chandan  Singh  (DW.1)  was  examined  by  the  appellant  in  

defence who deposed that he knew Indira (Prosecutrix) and her husband  

being their neighbour.  The prosecutrix was having intimacy with the  

appellant for the last 3 years.  His house is at a distance of 40 yards  

from the house of  the prosecutrix.   There remained quarrel  between  

prosecutrix and her husband.  Her husband Sahib Rao (PW.3) did not  

like the entry of appellant in his house.

14.Surendra Kumar (DW.2) supported the defence version stating  as  

under:

“I know Sahib Rao and his wife Indira. Sahib Rao had   been working in my ration shop for last 7 years.  Sahib   Rao used to tell me that one boy whose name I do not   know used to visit the house of Sahib Rao which was   not liked by him and for that reason the husband and   wife had been quarreling.  The said boy, who is present   in  the  court  had  come  to  my  shop  also  alongwith   Indra.”  

15. If the evidence on record referred to hereinabove is appreciated,  

the following picture emerges:  

(i) Prosecutrix and appellant were known to each other for a  long  

time and there had been some relationship/intimacy between them.  

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(ii) Sahib Rao (PW.3), husband of the prosecutrix did not like the  

said relationship.  

(iii) There has been some incident two-three days prior to the actual  

incident on 16.9.1998  as Indira-prosecutrix had lodged some complaint  

against the appellant in the police as well as with the parents of the  

appellant.  

(iv) The complaint lodged by the prosecutrix two-three days prior to  

16.9.1998 with the police had never been placed  on record.  

(v)  The alleged incident dated 16.9.1998 had occurred on the side  

of the main road which remains busy and had sufficient light and in  

spite of the fact that the prosecutrix raised hue and cry, nobody came to  

help her.  

(vi) There  are  contradictions  on  the  issue  as  to  whether  the  

prosecutrix went to the working place of her husband and from there  

she proceeded to police station with him as evidence on record is also to  

the contrary i.e  she  straightaway went  to  the  police station and one  

Constable had gone and called her husband.  

(vii) Medical evidence does not  positively support the case of the  

prosecution  as  Dr.  Nisha  (PW.9)  deposed  that  seeing  her  

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condition and torn clothes it could be said that the prosecutrix  

might had been raped.   

(viii) Admittedly,  there  is  a  most  material  contradiction  in  the  

medical evidence and ocular evidence. Dr. Nisha (PW.9) had  

categorically recorded in the report  and deposed in the court  

that  the  prosecutrix  was  having  nail  marks   on  her  breast  

though the case of  Indira-prosecutrix had been that she was  

having nail marks on her throat.   

(ix) Deposition  of  Lekh Raj  (PW.6),  S.I.,  about  the arrest  of  the  

appellant  between  intervening night  of  30.10.1998 and  1.11.1998 at  

about  11.45  p.m.,  seems  to  be  improbable.   According  to  him,  the  

prosecutrix walked from her house to the police station at a distance of  

3 Kms. at midnight to inform the police that the appellant was sitting on  

the  stop  of  Khirki,  Press  Enclave.  The  witness  reached  there  with  

prosecutrix and  police constables. He found the appellant  sitting at the  

said stop and from there he was arrested.  The witness did not prepare  

the  arrest  memo with  the  help  of  any  independent  witness.   If  the  

appellant  was sitting at  the bus stop at midnight some other persons  

could have been also there.  

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(x) The defence version taken by the appellant and depositions of  

Chandan  Singh  (DW.1)  and  Surendra  Kumar  (DW.2)   in  support  

thereof, have not only been ignored/brushed aside  by the courts below  

rather no reference has been made to the same.  

(xi) The contradictions referred to hereinabove and particularly in  

respect of the nail marks on her body could not be said only to be minor  

contradictions which did not go to the root of the matter. Some of the  

contradictions/embellishments/improvements are of greater magnitude  

and had serious impact on the case.    

(xii)   The  F.S.L.  report  dated  6.5.1999  reveal  that  the  blood  

stains/semen on the prosecutrix kurta/ salwar belonged to the AB blood  

group though the blood group of the appellant is “O”(+) and thus, the  

FSL report does not support the case of the prosecution.  

16. It  is  a  settled  legal  proposition  that  once  the  statement  of  

prosecutrix inspires confidence and is accepted by the court as such,  

conviction can be based only on the solitary evidence of the prosecutrix  

and no corroboration would be  required unless  there are  compelling  

reasons which necessitate the court for corroboration of her statement.  

Corroboration of testimony of the prosecutrix as a condition for judicial  

reliance is not a requirement of law but a guidance of prudence under  

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the given facts and circumstances. Minor contradictions or insignificant  

discrepancies  should not be a ground for throwing out an otherwise  

reliable prosecution case.  A prosecutrix complaining of having been a  

victim of the offence of rape is not an accomplice after the crime. Her  

testimony has to be appreciated on the principle of probabilities just as  

the testimony of any other witness; a high degree of probability having  

been  shown to  exist  in  view of  the  subject  matter  being a  criminal  

charge. However,  if the court finds it difficult to accept the version  

of  the  prosecutrix  on its  face  value,  it  may search  for  evidence,  

direct  or  substantial,  which  may  lend  assurance  to  her  testimony.  

(Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & Anr.,  

AIR 2003 SC 818; and Vishnu v. State of Maharashtra, AIR 2006 SC  

508).

17.     Where  evidence  of  the  prosecutrix  is  found  suffering  from  

serious infirmities and inconsistencies with other material, prosecutrix  

making deliberate improvements on material point with a view to rule  

out consent on her part and there being no injury on her person even  

though her version may be otherwise, no reliance can be placed upon  

her  evidence.  (Vide:  Suresh  N.  Bhusare  &  Ors.  v.  State  of  

Maharashtra, (1999) 1 SCC 220)

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18.       In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010)  

14 SCC 534, this Court while dealing with the issue held:  

“The only evidence of rape was the statement of   the prosecutrix herself and when this evidence was   read  in  its  totality,  the  story  projected  by  the   prosecutrix was so improbable that it could not be   believed.”

19. In Rajoo & Ors. v. State of Madhya Pradesh, AIR 2009 SC  

858, this Court held 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  par  with  that  of  an  injured  witness  and  if  the  

evidence is reliable, no corroboration is necessary.  The court however,  

further observed:

“…….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…..  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.”

20. In   Tameezuddin @ Tammu v. State (NCT of Delhi), (2009)  

15 SCC 566,  this Court held has under:  

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“It is true that in a case of rape the evidence of the   prosecutrix must be given predominant consideration,   but to hold that this evidence has to be accepted even if   the  story  is  improbable  and  belies  logic,  would  be   doing violence to the very principles which govern the   appreciation of evidence in a criminal matter.”

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

victim was habituated to sexual intercourse, no inference of the victim  

being a woman of “easy virtues” or a women of “loose moral character”  

can be  drawn.  Such a woman has a right to protect her dignity and  

cannot  be subjected to  rape only for  that  reason.  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. Merely because a woman is of easy  

virtue, her evidence cannot be discarded on that ground alone rather it is  

to be cautiously appreciated. (Vide:  State of Maharashtra & Anr. v.  

Madhukar Narayan Mardikar, AIR 1991 SC 207; State of Punjab v.  

Gurmit Singh & Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu  

@ Yunus & Anr., AIR 2005 SC 1248).

22. In view of the provisions of Sections 53 and 54 of the Evidence  

Act, 1872, unless the character of the prosecutrix itself is in issue, her  

character is not a relevant factor to be taken into consideration at all.

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23. The courts while trying an accused on the charge of rape,  must  

deal   with  the  case  with  utmost  sensitivity,  examining  the  broader  

probabilities of a case and not get swayed by minor contradictions or  

insignificant discrepancies in the evidence of witnesses which are not of  

a substantial character.    

            However, even in a case of rape, the onus is always on the  

prosecution  to  prove,  affirmatively  each  ingredient  of  the  offence  it  

seeks to establish and such onus never shifts. It is no part of the duty of  

the defence to explain as to how and why in a rape case the victim and  

other witness  have falsely implicated the accused. Prosecution case has  

to stand on its own legs and cannot take support from the weakness of  

the case of defence.  However great the suspicion against the accused  

and however strong the moral belief and conviction of the court, unless  

the offence of the accused is established beyond reasonable doubt on  

the basis of legal evidence and material on the record, he cannot be  

convicted for an offence. There is an initial presumption of innocence  

of  the  accused  and  the  prosecution  has  to  bring  home  the  offence  

against the accused by reliable evidence. The accused is entitled to the  

benefit of every reasonable doubt.  (Vide:  Tukaram & Anr. v. The  

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State  of  Maharashtra,,  AIR 1979 SC 185;  and  Uday v.  State  of  

Karnataka, AIR 2003 SC 1639).

24. Prosecution has to prove its case beyond reasonable doubt and  

cannot take support from the weakness of the case of defence.  There  

must  be  proper  legal  evidence  and material  on  record  to  record  the  

conviction of the accused.   Conviction can be based on sole testimony  

of  the  prosecutrix  provided  it  lends  assurance  of  her  testimony.  

However,  in  case  the  court  has  reason  not  to  accept  the  version  of  

prosecutrix on its face value, it may look for corroboration.  In case the  

evidence is read in its totality and the story projected by the prosecutrix  

is found to be improbable, the prosecutrix case becomes liable to be  

rejected.  

The court must act with sensitivity and appreciate the evidence  

in totality of the background of the entire case and not in the isolation.  

Even if  the  prosecutrix  is  of  easy  virtue/unchaste  woman that  itself  

cannot be a determinative factor and the court is required to adjudicate  

whether  the  accused  committed  rape  on  the  victim on  the  occasion  

complained of.   

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25.   The  instant  case  is  required  to  be  decided  in  the  light  of  the  

aforesaid settled legal propositions.  

           We have appreciated the evidence on record and reached the  

conclusions mentioned hereinabove. Even by any stretch of imagination  

it  cannot be held that the prosecutrix was not knowing the appellant  

prior to the incident. The given facts and circumstances, make it crystal  

clear that if the evidence of the prosecutrix is read  and considered in  

totality of the circumstances alongwith the other evidence on record,  in  

which the offence is alleged to have been committed,  we are of the  

view that her deposition does not inspire confidence.  The prosecution  

has not disclosed the true genesis of the crime. In such a fact-situation,  

the appellant becomes entitled to the benefit of doubt.

In view of above, the appeals succeed and are allowed.  The  

judgment and order dated 25.3.2009 passed by the High Court of Delhi  

in Criminal  Appeal  No. 53 of  2000 and that  of the trial  court  dated  

7.12.1999 are hereby set aside. The appellant is on bail, his bail bond  

stands discharged.  

   Before  parting  with  the  case,  we  would  like  to  record  our  

appreciation  to  Mr.  Yakesh  Anand,  learned  Amicus  Curiae  for  

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rendering commendable  assistance  to  the  court.  Mr.  Anand  shall  be  

entitled to Rs. 7,000/-  as  his fees payable by the State Government.   

..……………………….J. (Dr. B.S. CHAUHAN)

. ………………………..J.  (DIPAK MISRA)

New Delhi,  May 25, 2012

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