Comment : In this logical and well reasoned judgment the SC gave the benefit of a doubt to a person accused of rape on the following premise :-
i) The prosecutrix was the sole witness – her statement u/s 161/164/as well as in Court, not believed – she supressed the genesis of the occurence – by lying on a most crucial point that she did not know the accused – it otherwise transpired on evidence that there were quarrels with her husband over her familiarity with the accused ;
ii) It belies logic that she was raped next to a main road/crowded road – and claimed to have cried a lot – but nobody heard her cries;
iii) The Court dispelled claims that she was an unchaste woman who was habituated to sexual intercourse – the court though in general terms negated this and said that even women of easy virtue can be raped, the germane question is whether on that particular ocassion sexual itnercourse was with or without her consent;
iv) The Medical Report failed to disclose any internal injury – though there were nail marks – which Doctor commented could be self inflicted;
v) The Bodily fluids found on prosecutrix’s clothes did not match the accused.
Here is the judgment
Narender Kumar Vs. State (NCT of Delhi)
SUPREME COURT OF INDIA
(DR. B.S. CHAUHAN & DIPAK MISRA, JJ.)
STATE (NCT OF DELHI)
Criminal Appeal Nos.2066-67 of 2009-Decided on 25-05-2012.
Dr. B.S. Chauhan, J.-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/- .
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.
(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
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
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 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.
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
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 selfinflicted….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
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 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 husband has also
given severe beatings to the prosecutrix on that account.”
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
(i) Prosecutrix and appellant were known to each other for a long time and there had been
some relationship/intimacy between them.
(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 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.
(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 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
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)
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
“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.
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 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.
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.
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 rendering commendable assistance to the court. Mr.
Anand shall be entitled to Rs. 7,000/- as his fees payable by the State Government.