DEEPAK Vs. STATE OF HARYANA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 65 of 2012, Judgment Date: Mar 10, 2015
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.65 OF 2012
Deepak Appellant(s)
VERSUS
State of Haryana Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This criminal appeal is filed by the accused against the final
order/judgment dated 15.03.2010 passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No.2109-SB of 2009 which arises
out of judgment/order dated 18.08.2009/20.08.2009 passed by the Additional
Sessions Judge, Panipat in Misc. Sessions Case No. 31 of 2007.
2. By impugned judgment/order, the High Court upheld the conviction and
sentence of the appellant awarded by the Sessions Court for the offence
punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter
referred to as "IPC") and sentenced him to undergo rigorous imprisonment
for 7 years and a fine of Rs.5000/- and in default of payment of fine to
undergo rigorous imprisonment for another six months.
3. In order to appreciate the issue involved in the appeal, few relevant
facts need mention infra,
4. The prosecutrix (name withheld by us) was a young girl aged around 16
years 3 months at the relevant time. She had no educational background.
She was the resident of Vidya Nand Colony, Panipat and was living with her
parents and two younger sisters and three brothers. Her father, Abid was a
labourer in one factory and her mother was running a small grocery shop in
their house. The appellant-accused, a young boy in his twenties was
also residing with his family as their neighbour. He was also running his
own grocery shop in his house.
5. On 02.04.2007, Sub Inspector (SI)-Prithvi Raj of Police Station
Chandni Bagh received information about the sexual assault on the
prosecutrix, who was taken to the General Hospital, Panipat. After receipt
of the information, SI rushed to the General Hospital, Panipat to find out
the details. He was told that the prosecutrix was not admitted to the
hospital but was got examined by the doctors. He then collected parcel of
slides, swab of the prosecutrix, samples of tests done on the prosecutrix
and a copy of the MLR and then went to the prosecutrix's residence and met
her mother, Ruksana on 04.04.2007.
6. Ruksana-the mother of prosecutrix then gave her statement saying that
she has three daughters - the eldest being the prosecutrix aged around 14
years. Her husband was working as labourer and she was running a small
grocery shop. She said that the appellant (accused), their neighbour,
entered in their house a few days back in night and when she saw him, he
slipped away. She had complained about this behavior of appellant to his
parents but his parents did not pay any heed to her complaint. She then
said that after some days, in their absence, Sajida-wife of Salim, who was
living as their tenant in the same house, came to their house and enticed
the prosecutrix on the pretext that she should talk with the appellant-
accused regarding her love otherwise he would end his life by consuming
poison. Ruksana further narrated that a fortnight back, on hearing the
noise, she woke up and saw that her daughter was coming down from the
staircase. On being asked, the prosecutrix did not give any response and
avoided to give answer. However, later on, she told Ruksana (her mother)
that the appellant had raped her in the night forcefully without her
consent and threatened her not to disclose this incident to her parents or
to anyone else she will have to face the dire consequences.
7. This disclosure made by Ruksana led to registration of FIR No. 144
dated 04.04.2007 in the Police Station Chandni Bagh, Panipat against the
appellant-accused and Sajida, who as mentioned above, was living as tenant
of the prosecutrix's father in the next room. The statement of the
prosecutrix under Section 164 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Code") was recorded. Her ossification test
was also got done. The statements of other witnesses were recorded. The
appellant and Sajida were arrested. The appellant was medically examined.
After completing the investigation and collecting the necessary evidence, a
charge-sheet was filed against the appellant and Sajida under Sections
376/506/120-B of IPC.
8. On their appearance, the accused were supplied with all the documents
relied on by the prosecution. The case was then committed to the Court of
Sessions where the court framed the charges. So far as the appellant and
Sajida were concerned, both were charged for the offence punishable under
Section 120-B IPC. So far as the appellant was concerned, he was also
charged for the offence punishable under Section 376 IPC. Both the accused
pleaded not guilty and claimed trial.
9. With a view to connect the appellant and Sajida with the crime, the
prosecution examined 14 witnesses namely, Ruksana, the Complainant(PW-1),
the prosecutrix (PW-2), Dr. Rahul Diwan (PW-3), Dr. Shashi Garg (PW-4), Dr.
Nidhi Kharab (PW-5), Dr. Ashwani Kumar (PW-6), Ghansham Dass, ASI (PW-7),
Rajbir Singh, ASI (PW-8), Constable Jagbir Singh (PW-9), Head Constable
Dharam Pal (PW-10), Constable Joginder (PW-11), Head Constable Dharampal
(PW-12), Prithvi Raj, Inspector (PW-13) and ASI Rajbir Singh (PW-14)
whereas the defence examined four witnesses, namely, Hawa Singh, Clerk,
Death and Birth, Municipal Council, Panipat as DW-1, Ashok Kumar Bathla,
Senior Supervisor, BSNL, Panipat as DW-2, Salim as DW-3 and Head Constable
Kuleep as DW-4.
10. The Sessions Judge by judgment/order dated 18.08.2009/20.08.2009 held
that no case of conspiracy was proved against the appellant and Sajida of
any nature and since involvement of Sajida was not proved in this case,
therefore, both of them were acquitted of the charge of conspiracy. So
far as the appellant-accused (Deepak) was concerned, it was held that the
prosecution was able to prove the commission of offence of rape on the
prosecutrix by the appellant and accordingly he was convicted for the
offence punishable under Section 376 IPC and was sentenced to undergo 7
years' RI with a fine amount of Rs.5000/- and in default to undergo further
RI for 6 months.
11. Feeling aggrieved by the said order/judgment, the appellant filed
appeal before the High Court. By impugned judgment/order, the High Court
dismissed the appeal and upheld the conviction and sentence awarded to the
appellant by the Sessions Court. It is against this judgment/order, the
accused-Deepak has filed this appeal by way of special leave.
12. Learned Counsel for the appellant mainly urged three submissions. In
the first place, he urged that since there was inordinate delay in filing
the FIR of the incident of alleged rape by the victim or/and her family
members, the conviction of the appellant becomes unsustainable in law and
was, therefore, liable to be set aside. Secondly, he made his submission
based on the age of the prosecutrix. According to the learned counsel,
since the age of the prosecutrix was above sixteen, it should have been
held to be a case of consent given voluntarily by the prosecutrix rendering
the appellant's conviction bad in law and lastly, the ingredients of rape
were not proved against the appellant, no case of rape within the meaning
of Section 376 of IPC was made out. It is essentially these three
submissions, which were elaborated by the learned counsel in his arguments
by referring to the contents of the FIR and the evidence on record.
13. In contra, learned counsel for the respondent-State supported the
reasoning and the conclusion of the courts below and contended that the
appeal being wholly devoid of merit, the same deserves dismissal.
14. Having heard the learned counsel for the parties and on perusal of
the record of the case, we find no merit in any of the submissions of the
learned counsel for the appellant.
15. Coming to the first submission relating to the lodging of the FIR for
the commission of the offence is concerned, in our considered opinion,
there was no delay in the lodging of the FIR either and if at all there was
some delay, the same has not only been properly explained by the
prosecution but also considering the facts and circumstances of the case,
it was natural.
16. The Courts cannot overlook the fact that in sexual offences and, in
particular, the offence of rape and that too on a young illiterate girl,
the delay in lodging the FIR can occur due to various reasons. One of the
reasons is the reluctance of the prosecutrix or her family members to go to
the police station and to make a complaint about the incident, which
concerns the reputation of the prosecutrix and the honour of the entire
family. In such cases, after giving very cool thought and considering all
pros and cons arising out of an unfortunate incident, a complaint of sexual
offence is generally lodged either by victim or by any member of her
family. Indeed, this has been the consistent view of this Court as has
been held in State of Punjab vs. Gurmit Singh & Ors.[ (1996) 2 SCC 384)].
17. Keeping this well settled principle in mind, we find that the FIR in
this case was lodged on 04.04.2007 when the prosecutrix disclosed to her
mother of the incident first time as to what had happened with her hardly
two weeks before the date of disclosure and the mother, in turn,
immediately made a complaint to the police station and disclosed to the SI,
who visited her place on coming to know of the incident. The late
disclosure of the offence by the prosecutrix was also well justified by her
in her statement recorded under Section 164 of the Code and also in her
evidence wherein she said that the appellant had taken her photographs and
had also recorded her talks with him on mobile. The accused was, as per her
version, threatening her from raising any kind of alarm with the use of
such evidence in his possession.
18. The conduct of the prosecutrix, in this regard, therefore, appears to
us to be most natural. She did not inform the incident immediately to the
parents and waited for two weeks to eventually disclose to her mother. It
was for the reason that the appellant was all along threatening the
prosecutrix of the dire consequences with the use of the evidence, which he
was having with him against her.
19. We do not agree with the submission of the learned counsel for the
appellant when he contended that since no efforts were made by the
prosecution to file the photographs and the recorded conversation of the
prosecutrix with the appellant and, therefore, the prosecutrix's version
should not be relied on.
20. We cannot overlook the situation in which a young illiterate girl,
who had just crossed her 16th year and who was subjected to sexual violence
against her will would immediately react. Again, in our considered view, if
the Investigating Officer did not conduct the investigation properly in not
being able to seize the photographs and recorded conversation then it could
not have been made a ground to discredit the sworn testimony of the
prosecutrix, which was otherwise found to be trustworthy and consistent.
21. No one can dispute that the prosecutrix had no control over the
investigating agency and nor the lapse on the part of the investigating
agency could in any manner affect the creditability of the statement of the
prosecutrix.
22. In our considered opinion, the courts below, therefore, rightly
placed reliance on the sworn testimony of the prosecutrix on this issue and
came to a just and proper conclusion that having regard to the facts and
circumstances of the case coupled with the explanation given by the
prosecutrix, there was no delay in lodging the FIR by her mother and even
if there was some delay then, in our considered view, the same was
satisfactorily explained.
23. This takes us to the next two submissions of the learned counsel for
the appellant. The courts below have held that the age of the prosecutrix
on the date of commission of the offence was around 16 years and 3 months.
Assuming this finding to be proper, we are of the considered opinion that
these submissions have no merit in the light of the statutory presumption
contained in Section 114-A of the Evidence Act, 1872 against the appellant,
which in our opinion remain unrebutted at the instance of the appellant.
24. Section 114-A of the Indian Evidence Act was brought on statute book
with effect from 25.12.1983 by the Criminal Law (Amendment) Act, 1983. It
reads as under:
"114-A. Presumption as to absence of consent in certain prosecutions for
rape - In a prosecution for rape under clause (a) or clause (b) or clause
(c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section
376 of the Indian Penal Code (45 of 1860), 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."
25. In order to enable the court to draw presumption as contained in
Section 114-A against the accused, it is necessary to first prove the
commission of sexual intercourse by the accused on the prosecutrix and
second, it should be proved that it was done without the consent of the
prosecutrix. Once the prosecutrix states in her evidence that she did not
consent to act of sexual intercourse done by the accused on her which, as
per her statement, was committed by the accused against her will and the
accused failed to give any satisfactory explanation in his defence evidence
on this issue, the court will be entitled to draw the presumption under
Section 114-A of the Indian Evidence Act against the accused holding that
he committed the act of sexual intercourse on the prosecutrix against her
will and without her consent. The question as to whether the sexual
intercourse was done with or without consent being a question of fact has
to be proved by the evidence in every case before invoking the rigour of
Section 114-A of the Indian Evidence Act.
26. Coming now to the case in hand, we find that the prosecutrix, in her
sworn testimony, in clear terms has said that she did not give her consent
for commission of the act to the appellant and that he committed the act of
sexual violence on her against her will. The appellant was not able to give
any satisfactory explanation in his statement recorded under Section 313 of
the Code nor was he able to adduce any defence evidence to rebut the
presumption contained in Section 114-A of the Indian Evidence Act, 1872
against him. So far as commission of sexual intercourse is concerned, it
is proved with the medical evidence that it was performed by the appellant
with the prosecutrix.
27. We are alive to the law laid down by this Court wherein it is ruled
that in a case of rape, no self- respecting woman would ever come forward
in a court just to make a humiliating statement against her honour such as
is involved in the commission of rape on her. The testimony of the
prosecutrix in such cases is vital and unless there are compelling reasons,
which necessitate looking for corroboration of her statement or where there
are compelling reasons for rejecting of her testimony, there is no
justification on the part of the court to reject her testimony.
28. In the instant case, our careful analysis of the statement of the
prosecutrix has created an impression on our minds that she is a reliable
and truthful witness and her testimony suffers no infirmity or blemish
whatsoever. That apart, as observed supra, even the medical evidence
supports the commission of sexual violence on her and we need not elaborate
on this issue any more in the light of concurrent finding of the courts
below having been recorded against the appellant holding in clear terms
that sign of commission of rape on her by the appellant stood proved by
medical evidence beyond reasonable doubt. Indeed, even the appellant had
not disputed the factum of commission of sexual intercourse by him on the
prosecutrix because as taken note of, the appellant's only defence was that
since the prosecutrix had consented to the commission of the sexual act, no
offence of rape was made out against him. This argument we have already
rejected.
29. In the light of this, we have no hesitation in invoking the statutory
presumption contemplated under Section 114-A of the Evidence Act against
the appellant rendering him liable to suffer the conviction under Section
376 of IPC for commission of offence of rape on the prosecutrix.
30. In the light of foregoing discussion, we uphold the finding of
commission of rape by the appellant on the prosecutrix, which in our view,
was rightly recorded by the two courts below.
31. The last submission of learned counsel for the appellant was that
looking to the young age of the appellant and further he being the first
offender and lastly, the fact that he has already undergone 3 years 1 month
in jail, this Court should take some lenient view in the matter of awarding
of the sentence to him.
32. We find no merit in this submission for the simple reason that the
appellant has been awarded minimum mandatory sentence of 7 years. In other
words, once the offence under Section 376 IPC is proved then the minimum
sentence is 7 years, which may extend to imprisonment for life and the
fine. Therefore, the appellant should feel fortunate that he was awarded
only 7 years' sentence else it could have been even more.
33. Since the State has not filed any appeal for enhancement of sentence,
we need not go into this question except to reject the submissions urged by
the learned counsel for the appellant being totally devoid of substance.
34. Learned counsel for the appellant had placed reliance on the decision
of this Court in Uday vs. State of Karnataka [(2003) 4 SCC 46] in support
of his submissions. We have gone through the facts of this case and find
that in the light of what we have held on appreciation of the evidence of
this case, the decision relied upon may not help the appellant. In our
opinion, it is distinguishable on facts.
35. In the light of foregoing discussion, we find no merit in this
appeal, which fails and is accordingly dismissed. Since the appellant is on
bail by the order passed by this Court on 06.01.2012, his bail bonds stand
cancelled and he is directed to surrender forthwith to serve out the
remaining period of his sentence.
...............................................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
.................................................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
March 10, 2015.
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