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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 79-80 of 2005  

State of Rajasthan                                            .… Appellant

Versus

Roshan Khan & Ors.                                   ….. Respondents

J U D G M E N T

A. K. PATNAIK, J.

These are  appeals  by  way of  Special  Leave under  

Article 136 of the Constitution against the judgment dated  

21.11.2003 of the Rajasthan High Court,  Jodhpur Bench,  

setting aside the judgment of the trial court convicting the  

respondents  of  the  offences  punishable  under  Sections  

366  and  376(2)(g)  of  the  Indian  Penal  Code,  1860  (for  

short ‘IPC’).

Facts

2. The  facts  very  briefly  are  that  on  28.04.1999  

Ruliram lodged a complaint at the Bhadra Police Station in

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District  Hanumangarh,  stating  as  follows:  There  was  a  

marriage of  the daughter of his  brother Gyan Singh for  

which a feast was arranged by him on 27.04.1999.  His 15-

16  years  old  daughter,  who  was  slightly  weak-minded,  

disappeared.   When  she  did  not  return  for  quite  some  

time, he and others started searching her.  At about 9.00  

p.m., a milkman informed him that he had seen six boys  

taking away a girl  towards Kalyan Bhoomi.   About 1.00  

a.m. on 28.04.1999, when Ruliram was on a scooter with  

Gyan Singh still looking for his daughter, he noticed five  

boys in the light of the scooter near the old dilapidated  

office building of the Sheep and Wool Department and all  

the five, seeing the light of the scooter fled.  When they  

went into the old building, they found Akbar having sexual  

intercourse with his daughter and she was shouting.  They  

caught hold of Akbar who later informed them that all the  

remaining five had also performed sexual intercourse with  

his daughter and they knew the remaining five persons.  

The police registered a case under Sections 147 and 376,  

IPC, and carried out investigation and filed a charge-sheet  

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against the six respondents under Sections 376/34, IPC,  

and the case was committed for trial.   

3. In the course of trial before the Additional Sessions  

Judge, Nohar Camp, Bhadra, the prosecution examined as  

many as nine witnesses.  Ruliram was examined as PW-1,  

his daughter (prosecutrix) was examined as PW-2, and Dr.  

Ramlal, who had medically examined the prosecutrix, was  

examined as PW-7 and the report of the Forensic Science  

Laboratory  was  marked  as  Ext.P-39.   The  Additional  

Sessions Judge relied on the evidence of PW-1, PW-2 and  

PW-7 and the Ext.P-39 and convicted the six respondents  

under  Section  376(2)(g)  and  Section  366,  IPC,  by  

judgment dated 18.11.2000,  and after  hearing them on  

the  question  of  sentence,  sentenced  them  for  rigorous  

imprisonment for ten years each and a fine of Rs.5,000/-  

each, in default a further sentence of two months rigorous  

imprisonment each for the offence under Section 376(2)

(g),  IPC,  and rigorous imprisonment for  four  years each  

and a fine of Rs.3,000/- each, in default a further sentence  

of one month rigorous imprisonment each for the offence  

under Section 366,  IPC.   The Additional  Sessions Judge,  

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however, directed that the sentences for the two offences  

are to run concurrently and upon deposit of fine by the  

accused persons, a compensation of Rs.25,000/- be paid  

to the prosecutrix.

4.  The respondents filed criminal appeals before the  

High  Court  and  the  High  Court  held  in  the  impugned  

judgment  that  the  deposition  of  the  prosecutrix  (PW-2)  

was not believable and the evidence of Dr. Ramlal (PW-7)  

did  not  corroborate  the  prosecution  story  in  some  

respects.  The High Court further held that the evidence  

given  by  Ruliram (PW-1)  that  the  prosecutrix  was  only  

aged 14 years cannot be believed and that she could be  

aged  up  to  19  years  and  there  were  circumstances  to  

suggest that she went with the respondents on her own.  

The High Court was also of the view that the delay on the  

part of Ruliram (PW-1) to lodge the FIR on 28.04.1999 at  

11.00 a.m. when the incident came to his knowledge at  

1.00 a.m.  cast  serious  doubts  on  the  prosecution  case.  

The High Court accordingly set aside the judgment of the  

Additional  Sessions  Judge,  allowed  the  appeals  and  

acquitted all the six respondents of the charges.

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Contentions of learned counsel for the parties:

5. Dr.  Manish  Singhvi,  learned  counsel  for  the  State  

submitted that the High Court should not have disbelieved  

the evidence of PW-1 and PW-2 as there was no enmity  

between these witnesses and the accused persons.   He  

referred to the evidence of PW-1, PW-2 and PW-7 as well  

as FSL report (Ext.P-39) to show that a case of gang rape  

by the six accused persons had been established beyond  

reasonable  doubt.   He  further  submitted  that  the  High  

Court could not have held that there were circumstances  

to suggest that the prosecutrix could have gone on her  

own with the accused persons.  He relied on Section 114A  

of  the  Indian  Evidence  Act,  1872  which  provides  that  

where sexual  intercourse by the accused is  proved and  

the question is whether it was without the consent of the  

woman alleged to have been raped and she states in her  

evidence before the Court that she did not consent, the  

Court  shall  presume  that  she  did  not  consent.   He  

submitted  that  the  High  Court  has  lost  sight  of  this  

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presumption under Section 114A of the Indian Evidence  

Act.

6. Dr. Singhvi next submitted that the High Court should  

not have entertained doubts about the prosecution story  

on the ground of delay in lodging the FIR.  He submitted  

that no father would like to lodge a complaint making a  

false allegation of rape of his daughter.  He relied on the  

decision of this Court in Balwant Singh and Others v. State  

of Punjab [(1987) 2 SCC 27] in which a similar contention  

that the father of the prosecutrix had lodged the FIR on  

account of previous enmity with the accused was rejected  

on the ground that a father of the proscutrix would not  

falsely  involve  his  daughter  in  a  case  of  rape  by  the  

accused.

7. Dr. Singhvi finally submitted that the prosecutrix in  

this case was a mentally deficient girl and was vulnerable  

to  sexual  abuse  and,  therefore,  the  High  Court  should  

have been sensitive while deciding the case.  He cited the  

decisions  of  this  Court  in  State  of  H.P. v.  Gian  Chand  

[(2001) 6 SCC 71] as well as in Tulshidas Kanolkar v. State  

of Goa [(2003) 8 SCC 590] in support of this submission.  

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He submitted that in the present case the trial court had  

rightly convicted the respondents under Sections 366 and  

376(2)(g), IPC but the High Court reversed the conviction  

of the respondents and acquitted them of the charges.  He  

submitted that on almost similar facts this Court in State  

of Rajsthan v.  N.K. [(2000) 5 SCC 30] has set aside the  

judgment of the High Court and restored the conviction of  

the accused persons by the trial court.

8. In  reply,  Mr.  Mukesh  Sharma,  learned  counsel  for  

respondent  Nos.  1,  2,  3,  4  and  6,  submitted  that  Dr.  

Ramlal  (PW-7)  has  not  found  any  injury  on  the  private  

parts of the prosecutrix and that he has found only some  

marks  of  eczema.   He further  submitted that  PW-1 has  

only stated that with the help of the scooter light, he saw  

five persons running away but he has not been able to  

properly identify these five persons, namely, respondents  

Nos. 1, 2, 3, 4 and 6.  He submitted that as he had only  

found Akbar (respondent No.5) having sexual intercourse  

with the prosecutrix, no case of gang rape under Section  

376(2)(g), IPC, is made out.

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9. Mr.  Sidharth  Dave,  amicus  curiae  for  respondent  

No.5,  submitted  that  the  prosecution  story  that  the  

prosecutrix  was  a  mentally  deficient  girl  has  not  been  

proved.  He argued that, on the contrary, the doctor (PW-

7) has opined that the mental condition and equilibrium of  

the prosecutrix were normal.  He next submitted that the  

High Court has rightly come to the conclusion that the FIR  

was actually lodged at 11.00 a.m. on 28.04.1999 and had  

been ante timed to 6.00 a.m. on 28.04.1999.  He argued  

that  this  manipulation  casts  serious  doubts  on  the  

prosecution story that rape has been committed on the  

prosecutrix.   He  submitted  that  Dr.  Ramlal  (PW-7)  has  

found on examination of the prosecutrix that there was  

one posterior perineal tear of the size 1/4” x 1/8” x 1/8”  

caused within 24 hours and had also given his opinion that  

this injury may result from the fall on some hard surface  

and,  therefore,  a  case  of  rape  by  Akbar  had  not  been  

established beyond reasonable doubt.  He submitted that  

the view taken by the High Court was a plausible one on  

the facts of this case and should not be interfered with an  

appeal under Article 136 of the Constitution.  He relied on  

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the judgment of this Court in State of Rajasthan vs. Shera   

Ram [(2012) 1 SCC 602] in support of this submission.  

Findings of the Court

10.  We have perused the evidence of informant (PW-1).  

He has stated that 28.04.1999 was the date of marriage of  

Manju, the daughter of his brother Gyan, and during dusk  

time on 27.04.1999, his daughter (the prosecutrix), who  

was 14 years old and not mentally balanced, had gone to  

call  the  ladies  of  the  locality  but  did  not  return.   He  

searched the entire village and thereafter he went on the  

scooter driven by his brother Gyan Singh towards village  

Rajpura and on the way a milkman told them that six boys  

catching the hand of a girl  were taking her towards the  

cremation  ground.   They  went  searching  for  the  

prosecutrix in the cremation ground but did not find her  

there. Thereafter, they turned the scooter towards village  

Motipura and they found that five persons were standing  

in the cluster of keekar trees near the  Bhedia Daftar (an  

old dilapidated building) and on seeing them, five persons  

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fled away.  When they went inside the dilapidated building  

they found that the prosecutrix was crying and Akbar was  

lying  over  her  and  having  sexual  intercourse  with  her.  

PW-1 has also stated that the five persons who fled away  

are Roshan, Jangsher, Yakoob, Shafi and Kadar.  He has  

also said that all the aforesaid six persons are residents of  

his Mohalla (locality) and were present in Court.  PW-1 has  

further stated that by the time they reached the  Bhedia  

Daftar, it was about 1.00 a.m. of 28.04.1999 and he took  

the  prosecutrix  and  Akbar  to  the  Police  Station  and  

submitted  the  complaint  (Ext.P-1)  at  6.00  a.m.  of  

28.04.1999.

11.   We have also perused the evidence of prosecutrix  

(PW-2).   She has stated that  when the marriage of  the  

daughter of  his  uncle Gyan was to take place,  she had  

gone out at dusk time from her house to call ladies to sing  

songs and on the way she met Akbar who told her that her  

uncle was looking for  her.   Then she accompanied with  

Akbar  proceeded  further  and  met  Jangsher  near  the  

railway  crossing  who  also  told  her  that  her  uncle  was  

looking for her.  She then started walking and Akbar and  

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Jangsher followed her and after some time she found Shafi  

and Yakoob and all the four persons started following her  

and after some time she saw Kadar and Roshan and all  

the six persons took her to a bridge on the road and from  

there  they  brought  her  to  the  tree  of  Tali  in  the  field.  

Thereafter, all the six persons made her fall beneath the  

Tali tree forcibly and removed her  salwar, caught hold of  

her and took her to a distance of two-three fields and then  

to a hut.  Then they took her to Bhedia Daftar where also  

they  committed  sexual  intercourse  with  her  and  when  

Akbar was committing rape on her, PW-1 and her uncle  

came and the remaining five persons fled away.  She has  

stated that all  these six accused persons belong to her  

Mohalla (locality) and they were present in Court.  She has  

also  identified  six  accused  persons  in  Court.   She  has  

categorically  stated  that  all  the  six  persons  committed  

rape on her without her consent and forcibly.

12. We have also read the evidence of Dr. Ramlal (PW-7)  

He has stated that he has examined the prosecutrix and  

prepared the medical  examination report  (Ext.P-15)  and  

he had not found any mark of injury on her hidden parts,  

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breast, thighs and forearm.  He has further stated that her  

hymen was already ruptured and there was one posterior  

perineal tear of the size 1/4” x 1/8” x 1/8” caused within  

24 hours.  His opinion is that prosecutrix was habitual to  

sexual intercourse and there was nothing to suggest that  

she had not been raped but the vaginal swab and smear  

slides could be tested to find out the presence of sperms.  

PW-7 has also examined all the six accused persons and  

also stated that their  pants and underwears were taken  

into  possession  and  sealed  and  delivered  to  the  SHO,  

Bhadara.  The SHO, Bhadara, has been examined as PW-9  

and  he  has  stated  that  he  handed  over  the  pieces  of  

medical  evidence  received  from  the  Medical  Officer  of  

Govt. Hospital, Bhadara to the in-charge of the Malkhana  

and later on he got all such evidence in eight packets sent  

to  the  FSL,  Rajasthan  for  test  and  the  FSL,  Rajasthan,  

submitted the test report (Ext.P-39).

13.  Ext.  P-39,  which  is  the  report  under  Section  293,  

Cr.P.C.  of  the  FSL,  Rajasthan,  gives  the  following  

descriptions of the articles and result of examination:

     “Description of Articles

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Packet Parcel No. Exhibit No.  marked by me

Details of exhibits

A. 1 Vaginal Swab “ 2 Vaginal smear B. 3 Salwar “ 4 Kameej 1. 5 Pants 2. 6 Pants “ 7 Underwear 3. 8 Pants 4. 9 Pants “ 10 Underwear 5. 11 Pants “ 12 Underwear A. 13 Underwear

Result of Examination

Human semen was detected in exhibit No.1, 2 (from  packet marked A), 3, 4 (from B), 5 (from 1), 7 (from 2), 8  (from 3) & 10 (from 4).

Semen was not detected in exhibit No.6 (from 2), 9 (from  4), 11, 12 (from 5) & 13 (from A).

Exhibit No.1, 2 (from A) have been consumed during the  examination.

      (Dr. PRABHA SHARMA)”

14.   Thus, the evidence of the prosecutrix (PW-2) is clear  

that  all  the  six  respondents,  Akbar,  Jangsher,  Roshan,  

Yakoob, Kadar and Shafi, committed rape on her without  

her consent and forcibly.  This evidence of the prosecutrix  

(PW-2)  is  also  corroborated  by  the  evidence  of  the  

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informant  (PW-1),  who  had  himself  witnessed  Akbar  

committing  rape  on  the  prosecutrix.   PW-2  had  also  

informed PW-1 soon after the rape by the accused persons  

that not only Akbar but the other five respondents also  

had forcibly committed rape on her.  The evidence of PW-1  

and PW-2 that all the six respondents had committed rape  

on the prosecutrix is also corroborated by the complaint  

(Ext.P-1) made by PW-1 to the police within a few hours of  

the  incident  as  provided  in  Section  157  of  the  Indian  

Evidence  Act.   Dr.  Ramlal  (PW-7)  has  opined  after  

medically  examining  the  prosecutrix  that  there  was  

nothing  to  suggest  that  she  had  not  been  raped.   To  

confirm whether rape was committed on the prosecutrix  

by the six accused persons, the vaginal swab and vaginal  

smear as well as salwar and kameej of the prosecutrix and  

the pants and underwears of the accused persons were  

sent by the letter (Ext.P-31) to the FSL, Rajasthan, and as  

per  the  report  of  the  FSL,  Rajasthan  (Ext.P-39),  human  

semen  was  detected  in  the  vaginal  swab  and  vaginal  

smear (Exts.1 & 2 from packet ‘A’), salwar and kameej of  

the prosecutrix  (Exts.3  & 4 from packet  ‘B’),  two pants  

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(Ext.5 from packet 1, and Ext. 8 from packet 3) and two  

underwears (Ext.7 from packet 2, and Ext.10 from packet  

4).  The medical evidence, therefore, also corroborates the  

evidence  of  PW-1  and  PW-2  that  there  was  sexual  

intercourse  between  the  prosecutrix  and  the  accused  

persons.

15.   We  cannot  accept  the  submission  of  Mr.  

Siddharth  Dave,  learned  amicus  curiae  for  respondent  

No.5  that  the  finding  given  by  the  High  Court  that  the  

prosecutrix may have gone with the accused persons on  

her own is a plausible one and should not be interfered  

with under Article 136 of the Constitution.   As we have  

already  noticed,  the  prosecutrix  (PW-2)  has  deposed  

categorically  that  all  the  six  persons  had  raped  her  

without  her  consent  and  forcibly.   Section  114A of  the  

Indian  Evidence  Act,  1872  clearly  provides  that  in  a  

prosecution for rape under clause (g) of sub-section (2) of  

Section 376, IPC, where sexual intercourse by the accused  

is proved and the question is whether it was without the  

consent of the woman alleged to have been raped and she  

states in her evidence before the Court that she did not  

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consent, the Court shall presume that she did not consent.  

Since the prosecutrix  (PW-2)  has  categorically  said  that  

sexual intercourse was committed by the accused without  

her  consent  and  forcibly,  the  Court  has  to  draw  the  

presumption that she did not give consent to the sexual  

intercourse  committed  on  her  by  the  accused  persons.  

The  defence  has  not  led  any  evidence  to  rebut  this  

presumption.  In our considered opinion, the High Court  

could  not  have,  therefore,  held  that  there  were  

circumstances to show that PW-2 had gone on her own  

and on this ground acquitted the respondents.

16.   From Ext.P-31 read with Ext.P-39, it is also clear  

that human semen was detected from the pants of Akbar  

and Jangsher and the underwears of Safi and Yakub.  As  

per  the  medical  evidence,  four  persons  had  committed  

rape on the prosecutrix.  Explanation 1 to Section 376(2)

(g), IPC, states that where a woman is raped by one or  

more in a group of persons acting in furtherance of their  

common intention, each of the persons shall be deemed to  

have committed gang rape within the meaning of the sub-

section.  This Court has, therefore, consistently held that  

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where  there  are  more  than  one  person  acting  in  

furtherance of their common intention of committing rape  

on a victim, it is not necessary that the prosecution should  

adduce clinching proof of a completed act of rape by each  

one of the accused on the victim.  (see  Om Prakash v.   

State of Haryana [(2011) 14 SCC 309],  Ashok Kumar v.   

State of Haryana [(2003) 2 SCC 143],  Bhupinder Sharma  

v.  State of  H.P. [(2003)  8  SCC 551],  Pardeep Kumar  v.  

Union Admn. [(2006) 10 SCC 608] and Priya Patel v. State  

of M.P. [(2006) 6 SCC 263]).  Thus, we cannot accept the  

submissions of  Mr.  Mukesh Sharma,  learned counsel  for  

respondent nos.1, 2, 3, 4 and 6, and Mr. Siddharth Dave,  

learned  amicus  curiae  for  respondent  No.5,  that  the  

medical  evidence do not  establish  a  case of  gang rape  

under Section 376(2)(g), IPC.

17.   The High Court,  however,  has considered the  

delay on the part of informant (PW-1) to lodge the FIR as a  

relevant factor to doubt the prosecution story.  We find  

that PW-1 has explained the delay in his evidence.  He has  

stated that after he found his daughter at about 1.00 a.m.  

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on 28.04.1999 at the  Bhedia Daftar with Akbar and after  

the five other accused persons had fled, they returned to  

their house at 2.00 a.m. and remained at their house till  

before sunrise and thereafter lodged the FIR at the Police  

Station.  He has further stated that the delay from 2.00  

a.m. to 6.00 a.m. in lodging the report was on account of  

the fact that his wife was sick and he was also frightened  

and there was no other person to go to the police station.  

He has also stated that he returned home from the police  

station at  about 9.00 a.m.   The SHO of  Bhadara Police  

Station has in his evidence stated that on 28.04.1999 the  

informant appeared in the police station and produced a  

written report (Ext.P-1) before him.  In cross-examination  

on behalf of the accused-Roshan, Shafi and Yakoob, PW-9  

has stated that Ext.P-1 was produced before him at 6.00  

a.m. on 28.04.1999.  Yet the High Court has come to the  

conclusion that the report (Ext.P-1) must have been filed  

at about 11.15 am. and was ante timed to 6.00 a.m.  For  

this conclusion, we do not find any evidence, but only a  

surmise that Ext.P-1 must have been typed at the court  

premises after 11.00 a.m.  Thus, the report (Ext.P-1) was  

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filed by   PW-1 at 6.00 a.m. in the morning reporting an  

incident  that  he  had  witnessed  between 1.00  a.m.  and  

2.00 a.m. on 28.04.1999 and the period from 2.00 a.m. to  

6.00 a.m., in our considered opinion, has been sufficiently  

explained by PW-1 in his evidence that he could not leave  

his wife alone until sunrise.  As has been rightly submitted  

by Dr.  Singhvi,  no father would lodge a false complaint  

that his daughter has been gang-raped.  The High Court  

should  not  have  doubted  the  prosecution  story  on  the  

ground of delay in lodging the FIR.  

18.   The judgment of the High Court is thus contrary  

to the evidence on record and is liable to be set aside.  We  

accordingly  set  aside  the  judgment  of  the  High  Court  

acquitting the respondents and restore the judgment of  

the trial court convicting the respondents for the offences  

under Sections 366 and 376(2)(g), IPC, and maintain the  

sentences  imposed  for  the  two  offences  on  the  

respondents by the trial court.   

19.   The  appeals  are  accordingly  allowed.   The  

respondents  will  be  taken  into  custody  forthwith  to  

undergo the remaining sentence.            

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.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (Gyan Sudha Misra) New Delhi, January 15, 2014.    

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