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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.2393 OF 2010

PARKASH CHAND  ...APPELLANT(S)

VERSUS

STATE OF HIMACHAL PRADESH  ...RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. This  is  a  criminal  appeal  by  special  leave

challenging  the  order  dated  11.5.2010  passed  by  the

High Court of Himachal Pradesh at Shimla in Criminal

Appeal No.615 of 2002 affirming the conviction of the

appellant under  Sections  376  and  506 of the Indian

Penal Code.  In short, the case of the prosecution is

as follows:

In December, 1999, the appellant committed rape upon

P.W.2.  It is also the further case that P.W.2 was

intimidated by the appellant and another co-accused.

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The appellant was charged under Sections 376 and 506

IPC read with Section 34 of the Indian Penal Code

and co-accused was charged under Section 506 read

with Section 34 of the IPC.  The trial Court found

the  case  in  favour  of  the  prosecution  and  after

convicting  the  appellant  and  co-accused  sentenced

the appellant to simple imprisonment for 7 years and

a fine of Rs.10,000/- with default sentence for the

offence punishable under Section 376 of the IPC.  He

was  also  sentenced  for  2  years  for  the  offence

punishable  under  Section  506  IPC.   Both  the

sentences were to run concurrently.  The co-accused

stands  acquitted  by  the  High  court  whereas  the

appeal filed by the appellant was unsuccessful.

2. We heard learned counsel for the parties.  The

learned counsel for the appellant would point out that

PW2, the prosecutrix was above the age of 16 years.

Learned  counsel  for  the  appellant  would  seek  to

extricate the appellant from culpability on the score

that the case of the prosecutrix is based on the FIR

which is lodged 7 months after the alleged commission

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of the rape.  There is delay of 7 months in lodging the

FIR just as in the case of Vijayan v. State of Kerala

2008 (14)SCC 763.  In this case also the prosecutrix

was pregnant at the time of filing the complaint.  The

FIR was filed on 17.7.2000. whereas the incident is

alleged  to  have  taken  place  in  December,  1999.   He

points  out  that  it  is  allegedly  filed  after  the

prosecutrix  told  PW1  who  accompanied  her  to  Deputy

Commissioner  Office,  Chamba.  It  is  pointed  out  that

according to the prosecution on 17.7.2000 when she came

to Chamba to get medicines, she allegedly disclosed the

incident  to  PW1  and  appellant  has  been  implicated

thereafter.  It is the case of the appellant that P.W.1

is a resident of the same village and that P.W.1 has

spoken about having met the prosecutrix even earlier

but nothing about the alleged rape was disclosed.

3. Per contra, the learned counsel for the respondent-

State would point out that there was ample evidence in

the form of testimony of the prosecutrix.  Besides that

learned counsel also drew our attention to the evidence

of PW4 before whom the appellant himself made an extra

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judicial confession.  So also attention was drawn to

the evidence of PW5.

4. PW5 has also deposed that the appellant requested

him  with  folded  hands  for  compromise  as  he  has

committed wrong with PW2, the prosecutrix and he wanted

to keep her and her child as his own.   

5. The  first  question  we  have  to  consider  is  the

impact  of  delay  of  nearly  7  months  in  lodging  the

complaint with the police.  The appellant seeks support

mainly from the judgment of this Court in the case of

Vijayan v. State of Kerala  2008 (14)SCC 763.  The High

court in the impugned judgment has on the other hand

relied  upon  the  judgment  of  this  Court  reported  in

State of Himachal Pradesh v. Shree Kant Shekari  AIR

2004  SC  4404.   Therein,  this  Court  has  essentially

relied upon the principles about the impact of delay as

noticed  by  it  in  the  judgment  of  this  Court  in

Tulshidas Kanolkar v. State of Goa reported in 2003 (8)

SCC  590  wherein  rape  was  committed  on  a  girl  whose

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mental ability was undeveloped.  This is what the court

had to say about the fact of delay.  

“……………In any event, delay per se is not

a  mitigating  circumstance  for  the

accused  when  accusations  of  rape  are

involved.  Delay  in  lodging  the  first

information report cannot be used as a

ritualistic  formula  for  discarding

prosecution  case  and  doubting  its

authenticity. It only puts the court on

guard to search for and consider if any

explanation  has  been  offered  for  the

delay. Once it is offered, the Court is

to only see whether it is satisfactory

or  not.  In  a  case  if  the  prosecution

fails  to  satisfactorily  explain  the

delay  and  there  is  possibility  of

embellishment  or  exaggeration  in  the

prosecution version on account of such

delay, it is a relevant factor. On the

other hand, satisfactory explanation of

the delay is weighty enough to reject

the  plea  of  false  implication  or

vulnerability  of  prosecution  case.  As

the factual scenario shows, the victim

was totally unaware of the catastrophe

which had befallen her. That being so,

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the mere delay in lodging of the first

information report does not in any way

render prosecution version brittle.”  

6. In  Vijayan  case (supra)  the  prosecutrix  who  was

aged about 17 years was the neighbor of the accused.

In her testimony the prosecutrix set up the case that

accused has raped her when no one else was there in the

house and she was raped in the house.  The accused-

appellant was alleged to have been told that she need

not worry as he will marry her.  She did not give any

complaint either to her parents and police in view of

the promise.  She became pregnant and while she was

carrying a child of 7 months, she requested the accused

to  marry  her.   The  accused  declined.   Thereafter  a

complaint was filed after 7 months.  On these facts

this court noted that no complaint or grievance was

made either to the police or the parents thereto.  The

explanation  for  delay  in  lodging  the  FIR  was  noted

namely  that  the  accused  promised  to  marry  her  and

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therefore the FIR was not filed.  The Court held as

follows:  

“…………In cases where the sole testimony of

the  prosecutrix  is  available,  it  is  very

dangerous to convict the accused, specially

when the prosecutrix could venture to wait

for  seven  months  for  filing  the  FIR  for

rape.   This  leaves  the  accused  totally

defenceless.   Had  the  prosecutrix  lodged

the  complaint  soon  after  the  incident,

there  would  have  been  some  supporting

evidence  like  the  medical  report  or  any

other injury on the body of the prosecutrix

so as to show the sign of rape.  If the

prosecutrix has willingly submitted herself

to sexual intercourse and waited for seven

months for filing the FIR it will be very

hazardous  to  convict  on  such  sole  oral

testimony.   Moreover,  no  DNA  test  was

conducted to find out whether the child was

born out of the said incident of rape and

that the appellant-accused was responsible

for the said child.  In the face of lack of

any other evidence, it is unsafe to convict

the accused.”

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7. In  the  case  of  Kaini  Rajan  v.  State  of  Kerala

reported in 2013 (9) SCC 113, on 17.9.1997 at about

8.30 a.m. it was alleged the prosecutrix was raped at a

site which was by the side of a public road.  It was

the case of the prosecutrix that she tried to make hue

and cry but was silenced by the accused by stating that

he would marry her.  Even after this incident he had

sexual  intercourse  on  more  than  one  occasion.   The

prosecutrix became pregnant, gave birth to a child and

accused did not keep his promise to marry her.  It is

thereafter that on 26.7.1998 nearly 10 months after the

alleged rape that a case was registered.  This Court

referred the  Vijayan’s case (supra), took note of the

place being on the side of a public road, the aspect of

delayed filing of the report and also the behavior of

the parents of the prosecutrix in not approaching the

family  members  of  the  accused  for  marrying  the

prosecutrix and instead lodging the report.  The Court

also  found  that  having  regard  to  the  site,  if  the

prosecutrix has made any resistance or made hue and cry

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it would have attracted large number of people from the

locality.  The appeal filed by the accused was allowed.

8. It is in the background of the aforesaid principle

that we must examine the question.  P.W. 2 prosecutrix

has undoubtedly stated that her parents had died and

she was left without any brother and sister.  She was

brought up by her uncle and aunt.  She studied upto 9th

class.  On 5.12.1999 while she was coming back at about

5-6 p.m. the appellant who is also the resident of the

same village and who is related to her as brother in

village  relation  caught  hold  of  her  and  started

dragging her towards the lonely place in the bushes and

committed rape.  She raised hue and cry but nobody was

there at the place of occurrence.  The appellant showed

her knife and threatened her to do away with her life

in  case  she  disclose  the  incident  to  anybody.   She

stated that she was so frightened and ashamed due to

which  she  did  not  disclose  the  incident  to  anyone.

After staying with her maternal grandmother when she

came back she knew about becoming pregnant.  Her aunt

enquired about her womb looking bigger and she told her

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about the incident.  Aunt sent her to the home of her

maternal  grandmother.   The  incident  came  to  be

disclosed by her aunt to P.W.4 who is also maternal

uncle of the prosecutrix.  A ‘baradari’ was called.

She was also present.  The appellant though called, did

not appear.  On 9.7.2000, persons including P.W.4 and

appellant came there and the latter told her that he is

prepared to take her and child to accompany him and

that he would get her and her child recorded as his

wife  and  child.   She  accompanied  the  appellant  by

making to understand by matrimonial uncle P.W.4.  She

stayed  there  for  one  day  and  two  nights.   It  is

thereafter the accused refused to keep her at his house

and the co-accused also threatened that they will not

keep  her  in  the  house  and  nor  would  get  the  child

recorded.  In short, she was turned out.  She stated

that she requested the accused not to turn her out as

she was pregnant.  On 17.7.2000 when she came to Chamba

for getting the medicines, she met P.W.1 the person

whom  she  described  as  brother  and  she  told  him  the

whole  incident.   She  also  asked  to  get  the  matter

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reported  at  the  police.   It  is  thereafter  that  the

complaint  was  lodged.   She  states  in  her  cross

examination  that  it  is  correct  that  the  path  is  a

common village path and people used to pass through the

said path.  She stated there was none at that time.

She would say that it is correct that the labourers

used to go their house after finishing their labour

work.  She made cries at the time when the accused

caught hold of her by showing a knife. She stated that

she had gone to the house of appellant of her own free

will.   She  volunteered  to  say  that  the  accused-

appellant had giving assurance that she is his wife and

was carrying his child in her womb.  She disclosed that

she told her grandmother about the rape and that she

was turned out by the uncle.  The grandmother (Nani)

told her to go to the house of the accused-appellant.

It was out of fear that she did not disclose to anyone.

She states that P.W.1 met her for the first time at

Chamba and the incident was also disclosed to him for

the first time.  She admits knowing the accused since

her childhood but denied having either played with him

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or studied with him.  She states that when she went to

the house of the appellant, she slept with him during

the night. She stated that she had told the petition

writer  that  the  appellant  took  her  forcibly  at  the

point  of  knife  and  threatened  to  kill  her  with  the

same.  She was confronted with the petition wherein it

was not so recorded.  In the petition to the police

also it is her statement she has stated so but it was

found not recorded.

9. We may also notice also the deposition of P.W.1 to

whom according to her, she disclosed for the first time

in July, 2000 and with whom she lodged a complaint.  He

stated that it was disclosed by her to him that the

appellant committed rape when she was coming back to

her house after purchasing medicines.  He admits that

the uncle of the prosecutrix is alive and he has not

lodged any complaint.  He admits that village Dugli to

which place prosecutrix had gone in December, 1999 to

purchase article is scattered within a radius of one

kilometer.  He would say that he got drafted in Exhibit

P.A. that prosecutrix had disclosed to him that the

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appellant had threatened her with knife/dagger in case

she disclosed the incident to anyone.  He stated that

this fact was not got drafted in Exhibit P.A.

10. P.W.3  is  not  only  married  to  uncle  of  the

prosecutrix but is also the elder sister of her own

mother.  She has inter alia stated that when PW.2 after

staying  at  her  maternal  grandmother’s  house  for  3

months  and  thereafter  after  coming  back  after  21/22

days, on noticing that her womb was getting bigger and

on her being questioned about it, she disclosed what

happened in December, 1999 namely, the rape committed

by the appellant.  She also stated that out of fear as

well  as  feeling  ashamed  this  was  not  disclosed  to

anyone.  Again, PW 2 was sent back to her maternal

grandmother’s house who is none other than the mother

of PW 3.  At that time PW 2 was six months pregnant.

PW 3 would further state that Rattan Chand (who was in

fact examined as PW 4) who is maternal uncle of the

prosecutrix and who is having in laws in her village

visited  her  house.   She  claims  to  have  thereupon

disclosed about the rape to him. The prosecutrix was

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thereupon called back from her maternal grandmother’s

house.  A baradari was called.  The appellant did not

attend.  Thereafter she speaks about her coming to know

that  prosecutrix  went  with  the  appellant  and  stayed

with  him  and  was  turned  out  later  on.   In  Cross

Examination she would state that the prosecutrix was

carrying  pregnancy  of  6  months  when  the  baradari

meeting was called.  She disclaims knowledge of the

outcome in the meeting.  She admits that the stomach

would  start  bulging  out  in  4  months  pregnancy.   In

further  cross  she  would  state  that  prosecutrix

continued for 15 days at her house after the disclosure

about  carrying  the  child  of  the  appellant  and

thereafter  she  went  to  maternal  grandmother’s  house.

She admits that she and her husband (namely, uncle of

prosecutrix) did not lodge any report either with the

Pradhan or the Police.  The prosecutrix was brought up

by them from the age of about 2 ½ years.  In regard to

the path she denied that there is only path in between

Bhogi and Dugli village.  She states there are two to

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three  other paths.  She, however, admits that this

path is a common path.

11. PW  4  Rattan  Chand  however,  has  a  different

version about how he came to know about the matter.  He

would state that prosecutrix is related to him.  On

5.7.2000 she came to his house at village Panjah.  On

inquiry about her womb being bigger than normal she

told  him  about  the  forcible  sexual  intercourse

committed by the appellant in December, 1999 and about

her being threatened with the help of a knife not to

disclose  it  to  anyone.   He  further  states  two  days

thereafter, namely on, 7.7.2000 he came to the house of

his  in-laws  in  village  Bhoga  and  this  fact  was

disclosed  to  the  Panchayat  member  Bhola  Ram  who

suggested a ‘Baradari’ meeting.  In the said baradari

meeting  Loki  Nand,  Kishan  Chand,  Balo  Ram  and  the

prosecutrix was also there.  As the appellant and his

family members did not attend the meeting, the meeting

could not take place.  He further states that it was

subsequently decided to report to the matter to the

Police.  Two days thereafter, namely, on 9.7.2000 at

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about  9/10  p.m.,  appellant  and,  PW  5  came  to  his

father-in-law.  They wanted to have special talk with

him.  It is thereupon that he says that the appellant

requested him with folded hands that since he was the

maternal uncle of the prosecutrix that he has committed

wrong  with  her  by  committing  forcible  sexual

intercourse due to which she became pregnant and the

foetus in her womb belongs to him.  He wanted to take

the prosecutrix to his house and wanted to keep her as

his wife and also unborn child and to get them recorded

in the Panchayat Register if they were ready to send

her as his wife.  Under compelling circumstances and

having  no  other  way  it  was  decided  to  send  the

prosecutrix as his wife.  The prosecutrix was not ready

to go as his wife but she was made to understand and

then she went to the house of the accused-appellant.

She was taken on the same night.  She stayed for one

day and two nights.  Then she was turned out.  In cross

examination he states that he did not report the matter

to  any  authority  when  the  prosecutrix  disclosed  the

incident  to  him.   After  ‘baradari’  meeting  the

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prosecutrix started living with her Nani.  He further

states that the accused-appellant visited his house on

5.7.2000 and at that time Sahib Singh (PW 5), Khelku

Devi  and  the  prosecutrix  was  also  present.   The

appellant was accompanied by PW 5.

12. He admits that his statement was recorded by

the police.  He states that he did not state to the

police that the prosecutrix told him that the appellant

had  met  her  on  the  way  and  that  he  had  committed

forcible sexual intercourse with her.   

He further states as follows:

“It is correct that I have not stated

the aforesaid facts to the Police as it

was  not  disclosed  to  me  by  the

prosecutrix”.

No doubt, thereafter it is found that he states as  

follows:

“I have not stated to the Police that

the  Prosecutrix  told  me  that  the

appellant took her to the bushes on the

point of knife on the pretext that the

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prosecutrix had already stated the said

fact to the police”.

13. In his deposition P.W.5 would state that on

9.7.2000 at about 8.00 p.m. while he was coming back,

the  appellant  and  the  co-accused  met  him.   The

appellant requested him with folded hands by taking him

into  a  side  and  told  him  that  compromise  be  got

effected with the prosecutrix because he has committed

wrong  with  her  and  the  child  in  her  womb  is  his

offspring.   However,  in  cross  examination  he  would

state as follows:

“Witness Rattan Chand told me that the

accused person want to effect compromise

with the prosecutrix.  Accused Prakash

Chand had no talk with me regarding the

aforesaid fact.  Similarly, no talk took

place with me and accused Chakknu on the

said fact.  It is correct that Rattan

Chand told me about the compromise by

the  accused  person  with  the

prosecutrix.”

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14. There  is  admittedly  a  delay  of  7  months  in

lodging the FIR in the case of alleged rape.  If the

case is reported immediately apart from the inherent

strength  of  the  case  flowing  from  genuineness

attributable  to  such  promptitude,  the  perceptible

advantage would be the medical examination to which the

prosecutrix can be subjected and the result of such

examination in a case where there is a resistance.  It

is the case of the prosecution that she raised hue and

cry and therefore apparently she would have resisted.

Possibly, a medical examination may have revealed signs

of any resistance or injuries.  In this case the High

Court has proceeded on the basis of testimony of the

prosecutrix  and  sought  to  fortify  it  by  the  extra

judicial confession made before PW4 and PW5.

15. As far as PW 4 is concerned, his evidence is

based on the prosecutrix going to him on 05/07/2000 and

revealing  to  him  what  had  happened  allegedly  in

December 1999 whereas PW3, the maternal aunt of the

prosecutrix clearly says that after  prosecutrix told

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her about the alleged rape and when PW4 came to visit

the same village where his in-laws also resides at that

juncture on 07/07/2000, the factum of the alleged rape

was disclosed to him and he came to know on the said

basis.  This is a completely different version from

what PW4 has spoken.  If PW3 is to be believed, then

knowledge  about  the  alleged  incident  was  gained  by

P.W.4 only on 07/07/2000 and that too from PW3 instead

he sets up the case that on 05/07/2000 the prosecutrix

went to his house and told him about the same.  In

fact, even the prosecutrix in her version has no such

case.   Rather,  the  prosecutrix  would  say  that  the

incident  was  disclosed  by  P.W.3  to  P.W.4.  This

completely  falsifies  the  version  of  P.W.4  that  on

5.7.2000 the prosecutrix went and told him about the

incident including about the threat of using the knife.

P.W.4 as we have noted in further cross examination

would state that he did not tell the police on the

basis that she had not told him about it.  This would

again show that version of P.W.4 that prosecutrix had

went  and  told  him  about  the  incident,  cannot  be

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believed.  No doubt, P.W. 4 seeks to state that he did

not tell the Police about what the prosecutrix told him

thinking that prosecutrix would have told the police

about it.   It does not appear to be safe.  In such

circumstances, it may not be safe to draw support from

the alleged extra judicial confession alleged to have

been made by the appellant to him.

16. As far as P.W.5 who again has been believed by

the  courts,  we  would  notice  that  in  the  cross

examination he categorically states that the appellant

and also co-accused did not ask him for compromise.

This is contrary to his version that on the way back to

his home on 09/07/2000 he met him and he sought for a

compromise.   It  is  also  to  be  noted  that  PW  4  has

stated in his cross examination that PW5 had met him on

05/07/2000  along  with  the  appellant.   This  is  not

considered by the courts below.  We have indulged in a

closer look at the evidence in these proceedings having

regard to the need to do so in view of the fact that

the complaint itself is lodged after 7 months. If the

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evidence adduced by the prosecution falls short of the

test of reliability and acceptability and as such it is

highly unreliable to act upon it even in an appeal by

special leave, such a critical examination may not be

unwarranted.   See decision of this Court in Ganga Kumr

Srivastava v. State of Bihar  2005 (6) SCC 211.  Also

when vital evidence is not appreciated, this Court can

interfere.   Furthermore,  we  notice  that  the  trial

court,  in  fact,  proceeded  on  the  basis  that  the

prosecutrix was not a minor.  The High Court finds on

evidence  that  the  prosecutrix  was  not  a  minor.

Moreover, we notice that the High court has found as

follows:

“16.  ………On  18-8-2000,  the  prosecutrix

was again brought and was examined by

him and the pregnancy of approximately

36 weeks was detected.  There is nothing

in  the  MLC  that  the  prosecutrix  was

habitual of sexual intercourse……”.

However, we find in Exhibit PE which is the MLC dated

18/08/2000,  it  is  clearly  stated  under  the  head

‘opinion’ as follows:

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“The  pt.  is  used  to  habitual  sexual

intercourse”

17. If we do not place confidence in the deposition

of PW4 and PW5 then the case would depend upon the

credibility of PW2, the prosecutrix.  The incident is

alleged to have taken place near a path which has been

admitted by the prosecutrix and her aunt PW3 as common

path.  If indeed the prosecutrix has raised hue and cry

as in the case reported in 2013 (9) SCC 113, it is very

unlikely that the labourers who are supposed to haunt

the common path could not hear it.  There is a case of

the appellant that the evidence would make out a case

of consensual sex.  It is true that in the High Court,

it  is  recorded  that  there  is  no  case  of  consensual

sexual intercourse as such argued but we have to decide

the case on the basis of evidence.  We would think in

the  circumstances  of  this  case  that  the  appellant

cannot be convicted for the offence under Section 376.

It would indeed be unsafe to convict him based on the

testimony of the prosecutrix.  He would certainly be

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entitled to the benefit of doubt which is created by

the very circumstances which we have referred.   

18. As  far  as  the  charge  against  the  appellant

under  Section  376  IPC  is  concerned,  it  reads  as

follows:

“That in the month of December 1999 at

about  5/6  PM  at  village  Bhoga,  you

committed  rape  upon  Kumari  ……………at  a

place  one  kilometer  away  from  Dugli

towards Bhoga and thereby committed an

offence punishable under Section 376 IPC

and within my cognizance;

And I hereby direct you accused be tried

on the said charge by this court.”

As far as the charge under Section 506 read with 34 IPC

is concerned, it reads as follows:

“That on 10.7.2000 at village Bhoga, you

alongwith your co-accused in furtherance

of  common  intention,  criminally

intimidated Kumari ……….to do away with

her  life  and  thereby  committed  an

offence punishable under Section 506 IPC

read with Section 34 IPC and within my

cognizance;

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And I hereby direct you accused be tried

on the said charge by this Court.”

19. The trial Court, in fact, has proceeded to rely

upon the testimony of prosecutrix about the appellant

threatening her that in case she discloses the incident

to anyone she will be killed by the accused.  This

apparently  is  related  to  the  incident  in  December,

1999.  In fact, the appellant was specifically charged

with  criminal  intimidation  allegedly  done  on

10/07/2000.  The appellant was so charged in alleged

furtherance of common intention along with co-accused.

The trial Court has also proceeded to convict the co-

accused  relying  on  the  evidence  of  the  prosecutrix.

The  High  Court  has  acquitted  the  co-accused  of  the

charge of criminal intimidation.  We have noted that

there is no specific charge even framed against the

appellant under Section 506 in regard to the alleged

incident which took place in December, 1999 and the

charge in fact relates only to the acts alleged to have

been committed on 10/07/2000.  Apart from the fact that

there is no specific charge against the appellant in

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regard  to  what  happened  in  December,  1999,  we  are

inclined  to  think  that  the  appellant  could  not  be

convicted  under  Section  506  having  regard  to  the

circumstances  which  we  have  already  discussed

hereinbefore.  

20. In such circumstances, the appeal is allowed.

We set aside the order of conviction and sentence of

the appellant by the courts below.  As the appellant is

on  bail,  the  bail  bonds  of  the  appellant  stands

discharged.

…………………………….CJI.

                                                 (Ranjan Gogoi)

…………………………….J.

                                          (Sanjay Kishan Kaul)

…………………………J.

               (K.M. Joseph)

New Delhi; February 12, 2019