Krishan Kumar Malik vs State Of Haryana

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1252 Of 2011

[Arising out of S.L.P. (Crl.) No.8021 of 2009]

Krishan Kumar Malik ...Appellant

Versus

State of Haryana ...Respondent

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. In all, eight accused were charged and prosecuted for

commission of alleged offences under Section 366 and

376 (2) (g) of the Indian Penal Code (hereinafter

shall be referred as `I.P.C.') for abducting

prosecutrix and then committing rape on her. Trial

Court after appreciation of evidence on record found

all the eight accused guilty for commission of offence

punishable under Section 366 and in addition to it,

found present Appellant (accused) Krishan Kumar Malik,

Vijay Dua, Krishan Takkar and Krishan @ Kaka, guilty

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for commission of offences under Section 376 (2) (g)of

the IPC. The said four accused were awarded a sentence

of ten years R.I. and a fine of Rs. 2000/- each and in

default of payment of such fine to undergo further

R.I. for a period of one year. These four convicts

were sentenced further to undergo R.I. for a period of

five years for the offence punishable under Section

366 of the I.P.C and to pay a fine of Rs. 1,000/-

each and in default of payment of fine to further

undergo R.I. for six months. Two other accused were

convicted solely under Section 366 of the IPC, and

being ladies, leniency was shown and they were awarded

a sentence of three years R.I. and a fine of Rs.

1000/- each, in default whereof, to undergo R.I. for

six months each. The remaining two accused, Sandeep

and Dheeraj were convicted under Section 366 of the

IPC as well and the Trial Court sentenced them each to

5 years R.I., and a fine of Rs. 1000/- in default of

payment of which a further period of 6 months R.I.

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would come into effect.

3. Feeling aggrieved by the judgment and order of

conviction recorded by Additional Sessions Judge,

Kurukshetra in Sessions Case No.52 of 1994 decided on

24.04.1996, Criminal Appeal No. 324-SB of 1996 (filed

by two female accused) and Criminal Appeal No. 338-SB

of 1996 was filed by remaining six convicted accused

in the High Court of Punjab and Haryana at Chandigarh.

Since both the appeals arose out of the same judgment,

they were heard analogously and were disposed off by a

common impugned judgment on 27.03.2009.

4. Learned Single Judge after going through the records

and appreciating the evidence available, partly

allowed Criminal Appeal 338-SB of 1996, qua Vijay Dua

and Krishan Kumar Takkar, and acquitted them of all

the charges levelled against them. They were

accordingly directed to be set at liberty. Thus out of

the initial eight, only the remaining six accused were

found to have committed offences under Section 366

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and, in addition, the Appellant and Krishan @ Kaka

were also found to have committed offences under

Section 376 (2) (g) of the IPC, by the High Court.

5. The present appeal has been filed by Krishan Kumar

Malik only, one of the accused. We were given to

understand that on account of paucity of funds and

various other reasons, other convicted accused have not

preferred any appeal. However on enquiries being made

from the office, it came to our notice that both the

Special Leave Petition as well as the Review Petition

filed by one of the two female accused Hardevi were

dismissed by this Court. Thus, in the present appeal, we

are only required to consider whether there existed

sufficient, cogent, valid, reliable and trustworthy

evidence to hold the Appellant guilty of the aforesaid

offences. To come to the said conclusion, it is

necessary to deal with the bare facts of the

prosecution.

6. Thumbnail sketch of instant case is as follows:

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Prosecutrix, PW-9, was a resident of Saraswati Road,

Pehowa and was said to be aged about 17 years at the

time of the commission of the said offence by the

th accused. She had passed her 10 class. Her father had

expired few years prior to the date of the incident.

Prosecutrix has two younger sisters by the names,

Sangeeta and Ritu. Ritu was said to be aged 8 years at

the time of the incident. She alongwith her mother,

Narayani Devi, and sister, Sangeeta, was running a

small book stall from their house. As she was having

vacation in her school, she alongwith her mother and

sisters, after closing the book shop, came to Darra

Khera in Thanesar to meet her maternal aunt (mausi),

about 15 days before the incident. On the date of

incident, they were staying with their mausi.

7. On 23.06.1994, at about 1.00 p.m., prosecutirx went

with Ritu, her Sister to Sector 13, Kurukshetra to

meet her aunt Bimla, wife of Des Raj. While they were

talking to each other at about 2.00 p.m., accused

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Hardevi (Bua), her daughter Heena, Heena's husband

Sonu and Heena's brother Dheeraj accompanied by six

boys, whose names were not known to the prosecutrix,

came to the house of her aunt, Bimla. Thereafter, they

forcibly lifted prosecutrix and put her in a blue

Maruti Van. Even though, lot of hue and cry was raised

by her as well as by her aunt, her aunt's husband,

neighbours and others but no one came forward to help

her. She was then taken to a vacant Kothi near a

bridge. After reaching the said Kothi, she was taken

to a separate room, and was subjected to alleged

forcible sexual intercourse by a hefty man who was

being called as Kaka and by another man, who was gitta

(short statured), having a beard. They committed the

alleged crime after removing her clothes. There were

Six more persons sitting in the said room, while two

of them committed rape on her one after the other as

stated above. Remaining six were also allegedly

fondling with her body parts. Some of them inserted

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finger in her anus and some of them gave tooth bite on

her cheek. The family of her so called Bua and others

were sitting in the adjoining room where the incident

had taken place.

8. Thereafter, all of them took her forcibly in the same

Maruti Van to Radaur to the in law's house of her Bua,

Hardevi. All the six boys left her there. Thereafter,

her Bua after cutting prosecutrix's hair gave her a

beating with sandals. As soon as she got an

opportunity, she escaped from the said house and

boarded the bus by which she reached Kurukshetra. At

Kurukshetra she met her mother Narayani and sister

Sangeeta. She then narrated the whole incident to them

after which they went to the Police Station to lodge

an FIR. FIR was recorded at Police Station, Manesar on

24.06.1994 at 12.30 a.m. In the said FIR, the same

story was mentioned by the prosecutrix stating that

ten persons had participated in the commission of the

said offence. But the name of the Appellant was not

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mentioned and instead he was described as Gitta (short

statured) with a beard.

9. On the strength of the said FIR, investigation

machinery was set into motion and prosecutrix was sent

for medical examination. On 24.06.1994, at 3.30 a.m.

Prosecutrix was examined by P.W-6, Dr. Sushma Saini,

Medical Officer, LNJP Hospital at Kurukshetra. Her

medical report and evidence would be discussed at a

later stage. Statement of prosecutrix under Section

164 of the Criminal Procedure Code, (hereinafter shall

be referred to as 'Cr.PC') was recorded by Shri

st Jagdeep Jain, RCS, Judicial Magistrate, 1 Class,

Kurukshetra on 27.06.1994. Thereafter on 28.06.1994

her further statement was recorded under Section 161

of Cr.PC. A perusal of both the aforesaid statements

clearly indicates that she has given the name of the

present Appellant Krishan Kumar Malik as the

perpetrator, describing him as short statured person.

10. The FIR lodged by prosecutrix was also sent to

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local Magistrate on 24.06.1994 at 2.20 a.m. During the

course of investigation, all the accused were arrested.

After completion of investigation, the accused were put

on trial for commission of the said offence before

Additional Sessions Judge, Kurukshetra. They pleaded not

guilty and requested for a judicial trial.

11. In order to bring home the charges levelled against

the accused, the prosecution had examined 14 witnesses

on its behalf. Defence also examined 5 witnesses on

their behalf. On appreciation of evidence available on

record, the trial court convicted the Appellant and the

remaining 7 accused mentioned hereinabove and awarded

sentences to all of them.

12. Subsequently, as has been previously stated, in

appeals preferred by all the 8 accused, before the High

Court two of them namely Vijay Kumar and Krishan Kumar

Takkar were acquitted and conviction of remaining

accused was upheld. However, this appeal has been

preferred by only Krishan Kumar Malik.

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13. We have accordingly heard Mr. Jaspal Singh, learned

Senior Advocate, ably assisted by Mr. Sanjeev Anand,

learned counsel for the Appellant and Mr. Roopansh

Purohit with Mr. Ramesh Kumar learned counsel for the

Respondent State and have perused the record.

14. The basic and foremost question that arises for

consideration in this appeal is whether the present

Appellant had committed the offence of abduction and

rape on the prosecutrix on 23.06.1994 or whether he has

been falsely implicated.

15. With intention to proceed further and complete the

journey to reach the destination, we would first like to

consider the evidence of prosecutrix threadbare. She was

examined as P.W.9. Admittedly she had not mentioned the

name of the Appellant in the FIR lodged by her promptly,

instead she described him as Gitta (Short statured) with

beard, even though she was aware of his name. No

explanation has been offered by her in this regard.

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16. According to the prosecutrix, only two accused had

sexual intercourse with her and other four were sitting

in the room fondling with her body parts. It may be

pertinent to point out that the number of people who

were with the prosecutrix during the abduction and

subsequent rape, has not been conclusively ascertained.

This point has been explored in detail in the next

paragraph. This appears to be quite improbable as there

were admittedly other rooms, where they could have sat

so as to allow the Appellant to do the act in privacy.

It is not her case that due to shortage of time or

accomodation this method was adopted.

17. The Prosecutrix admitted in her cross examination

that she had come to know the names of all the accused

during the course of occurence, as they were taking each

other's names. If that be so, then why she did not name

the Appellant in the FIR is a million dollar question?

These ommissions speak volumes against her and her

credibility stands shaken. It is also to be noted that

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initially she reported that there were in all 10 persons

but later on she deposed that there were only eight

persons and at some place she narrated that only 7

persons were there. When she had ample time to count the

number of persons then why this wavering in the number

of persons. These acts or omissions of Prosecutrix

cannot be said to be minor contradictions as these are

very relevant pieces of evidence. Because of such

contradictions, an agile and active court can

differentiate between genuine cases from the frivolous

and concocted ones. The role of courts in such cases is

to see, whether the evidence available before the court

is enough and cogent to prove the accused guilty.

18. From the record it is established that she was

member of a Musical Concert Party, which used to perform

at various functions. Her photographs and video

recording fully reflects it, yet she had the audacity to

deny this fact. It is also pertinent to mention, if she

had really met her mother Narayani and sister at the Bus

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Stop in Kurukshetra then, why Narayani or her sister

Sangeeta was not examined by the Prosecution. Thus story

of meeting them at Kurukshetra Bus Stop is wholly

unreliable and it appears to be concocted.

19. Medical evidence shows that her Labia Majora and

Labia Minora were healthy and had no marks of injury.

Hymen had old healed tear and the same was not red hot

or tender and did not bleed on touching. Vagina admitted

two fingers easily. P.W.6 Dr. Sushma Saini further

opined in her cross-examination that she might be

habitual to sexual intercourse prior to 23.06.1994. Her

Medico Legal Report and medical evidence further reveal

that she had not received any significant injuries on

other parts of her body and injuries on her private

parts were much less as mentioned by her in the FIR,

except for the cheek bite.

20. Admittedly, she had travelled certain distance in

the Maruti Van after her alleged abduction but she did

not raise any alarm for help. This shows her conduct and

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behaviour during the whole process and render her

evidence shaky and untrustworthy.

21. The statement of the prosecutrix that in all 11

persons were there in the Maruti Van renders it further

doubtful as it would be extremely difficult for 11

persons to be accommodated in the Maruti Van, the

seating capacity of which is only 5.

22. During the course of investigation, the prosecutrix

was taken to the area, to point out the Kothi, where she

was said to have been subjected to rape, but she failed

to identify the said kothi. It may be recalled that she

was alleged to have been abducted during broad day

light, thus her failure to identify the kothi, fully

belies her case.

23. These are some of the salient features of the lop

sided story of the prosecutrix, more so, when it has not

been corroborated by any other evidence. On the account

of various serious contradictions in the statement of

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prosecutrix and her actions, it could be safely

concluded that she was certainly not telling a gospel

truth.

24. Needless to say the solitary evidence of the

prosecutrix to bring home the charge of abduction and

commission of rape by the Appellant does not inspire

confidence and is not of sterling quality. In our

opinion, it is neither prudent nor safe to hold the

Appellant guilty of commission of the said offence. We

hold so, on account of many other circumstances, which

are against the prosecution, narrated hereinbelow:

25. Admittedly, no identification parade was conducted

to identify the Appellant as the description given by

prosecutrix about the details did not match with his

appearance. All through, she has been describing the

Appellant as gitta (short statured) man with beard,

whereas a statement before the Bench has been made by

learned counsel for Appellant, after verification from

the Appellant's wife, that he is 5' 6" tall. This fact

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has been independently corroborated by the jailor's

report on this specific query. Even though a man having

height of 5' 6" cannot be said be tall but by no

stretch of imagination, he could be called a gitta

(short statured) man.

26. Admittedly she was already shown the Appellant

and other accused at the Police Station, after they

were arrested. Thus, her dock identification in Court

had become meaningless.

27. No spot maps were prepared either by the Naib

Tehsildar or by the Investigaing Officer to show the

size of the room. If the size of the room was so small

then it could not have been possible to accommodate 7

persons and also allowing the Appellant to commit the

offence of rape. If the size of the room could have

been verified, then the very genesis of commission of

the offence by the Appellant would fall flat. This could

have been possible to ascertain only if spot map had

been prepared. This was a lacuna on the part of the

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investigating agency and prosecution, the benefit of

which must accrue to the Appellant.

28. PW-11, Sohan Singh, Inspector/ SHO had not gone

to see the spot at all. He has admitted this in the

following manner in his cross-examination:-

"Since I have never visited house No.

919/13, no site plan of that house was

prepared. Because the prosecutrix herself

has not stated the number of house. She was

even unable to identify this house. I did

not take the prosecutrix in house No. 919/13

inspite of the fact disclosed by accused on

27.6.1994."

This certainly reflects and shows the casual

manner in which the investigation was conducted.

29. PW-13, Sub Inspector Ramji Lal, has also admitted

this fact by making the following statements:

"However, Sneh Lata was not in a position to

locate the place of the incident.

Thereafter, I took her to Radaur. Even in

Radaur she was not able to locate the place

where she was criminally assaulted."

This further goes to show that not only the

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prosecutrix but even the I.Os failed to locate the site

where offence of rape was said to have been committed.

30. According to the prosecutrix, she was abducted

from the house of Bimla Devi where, apart from the above

two ladies, husband of Bimla Devi, Des Raj and sons of

Des Raj and Bimla Devi were present. They had raised

hue and cry for help at the time of abduction. Many

neighbours had come out of their houses but surprisingly

enough prosecution has not examined either Bimla Devi or

her husband, their sons or any of their neighbours. No

plausible and valid reasons have been given for their

non-examination.

31. No doubt, it is true that to hold an accused

guilty for commission of an offence of rape, the

solitary evidence of prosecutrix is sufficient provided

the same inspires confidence and appears to be

absolutely trustworthy, unblemished and should be of

sterling quality. But, in the case in hand, the

evidence of the prosecutrix, showing several lacunae,

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have already been projected hereinabove, would go to

show that her evidence does not fall in that category

and cannot be relied upon to hold the Appellant guilty

of the said offences. Indeed there are several

significant variations in material facts in her S.164

statement, S.161 statement (Cr.P.C.), FIR and

deposition in Court.

32.Thus, it was necessary to get her evidence

corroborated independently, which they could have done

either by examination of Ritu, her sister or Bimla

Devi, who were present in the house at the time of her

alleged abduction. Record shows that Bimla Devi though

cited as a witness was not examined and later given up

by the public prosecutor on the ground that she has

been won over by the Appellant.

33.As per the FIR lodged by the prosecutrix, she first

met her mother Narayani and sister at the bus stop at

Kurukshetra but they have also not been examined, even

though their evidence would have been vital as

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contemplated under Section 6 of the Indian Evidence

Act, 1872 (for short "The Act") as they would have

been Res Gestae witnesses. The purpose of

incorporating Section 6 in the Act is to complete the

missing links in the chain of evidence of the solitary

witness. There is no dispute that she had given full

and vivid description of the sequence of events

leading to the commission of the alleged offences by

the Appellant and others upon her. In that narrative,

it is amply clear that Bimla Devi and Ritu were stated

to be at the scene of alleged abduction. Even though

Bimla Devi may have later turned hostile, Ritu could

still have been examined, or at the very least, her

statement recorded. Likewise, her mother could have

been similarly examined regarding the chain of events

after the prosecutrix had arrived back at Kurukshetra.

Thus, they would have been the best person to lend

support to the prosecution story invoking Section 6 of

the Act.

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34. We shall now deal with Section 6 of the Act,

wich reads as under:

"6. Relevancy of facts forming part of

same transaction - Facts which, though not

in issue, are so connected with a fact in

issue as to form part of the same

transaction, are relevant, whether they

occurred at the same time and place or at

different times and places.

Black's Law Dictionary defines Res Gestae as follows:

(Latin: "things done") The events at issue,

or other events contemporaneous with them

In evidence law, words and statements about

the res gestae are usually admissible under

a hearsay exception (such as present sense

impression or excited utterance).

The said evidence thus becomes relevant and

admissible as res gestae under Section 6 of the Act.

35. Section 6 of the Act has an exception to the general

rule where-under, hearsay evidence becomes admissible.

But as for bringing such hearsay evidence within the

ambit of Section 6, what is required to be established

is that it must be almost contemporaneous with the acts

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and there could not be an interval which would allow

fabrication. In other words, the statements said to be

admitted as forming part of res gestae must have been

made contemporaneously with the act or immediately

thereafter.

36. Admittedly, she had met her mother Narayani and

sister soon after the occurrence, thus, they could have

been the best res gestae witnesses, still the

prosecution did not think it proper to get their

statements recorded. This shows the negligent and casual

manner in which prosecution had conducted the

investigation then the trial. This lacunae has not been

explained by the prosecution. The prosecution has not

tried to complete this mssing link so as to prove it,

beyond shadow of doubt, that it was Appellant who had

committed the said offences.

37. Learned Single Judge of the High Court, on the same

set of evidence has acquitted two accused, without

assigning any cogent, valid or specific reasons for it

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whereas on the same very set of evidence, the Appellant

has been found guilty. Why the same benefit could not

have been bestowed to the Appellant has not been dealt

with specifically in the impugned judgment.

38.Prosecution also adopted a peculiar mode in the case

as the first statement of prosecutrix was recorded

under Section 164 of the Cr.P.C. on 27.06.1994 before

Judicial Magistrate, First Class, Kurukshetra. Only

thereafter on 28.06.2004, her further statement under

Section 161 of the Cr.P.C. was recorded.

39. In fact, the procedure should have been otherwise.

This further shows that right from the beginning the

prosecution was doubtful on the trustworthiness of the

prosecutrix herself. Precisely that was the reason that

she was first bound down by her statement under Section

164 of the Cr.P.C.

40. The Appellant was also examined by the doctor, who

had found him capable of performing sexual intercourse.

In the undergarments of the prosecutrix, male semen were

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found but these were not sent for analysis in the

forensic laboratories which could have conclusively

proved, beyond any shadow of doubt with regard to the

commission of offence by the Appellant. This lacuna on

the part of the prosecution proves to be fatal and goes

in favour of the Appellant.

41. It is pertinent to mention here that Appellant is a

physically handicapped person to the extent of 55% as

per Doctor's Report, and this fact is not controverted

by the prosecution. This much of handicap of any person

would be easily noticeable, which Appellant failed to

mention at all. In fact, this would have been much

better identification of the Appellant, which the

prosecutrix did not mention at all.

42. On account of aforesaid shortcomings, irregularities

and lacuna on the part of the prosecution, in our

considered opinion, it will not be safe to convict the

Appellant.

43. With regard to the matching of the semen, we find it

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nd from Taylor's 2 Edn. (1965) Principles and Practice of

Medical Jurisprudence as under:-

"Spermatozoa may retain vitality (or free

motion) in the body of a woman for a long

period, and movement should always be looked

for in wet specimens. The actual time that

spermatozoa may remain alive after

ejaculation cannot be precisely defined, but

is usually a matter of hours. Seymour

claimed to have seen movement in a fluid as

much as 5 days old. The detection of dead

spermatozoa in stains may be made at long

periods after emission, when the fluid has

been allowed to dry. Sharpe found

identifiable spermatozoa often after 12

months and once after a period of 5 years.

Non-motile spermatozoa were found in the

vagina after a lapse of time which must have

been 3 and could have been 4 months."

44. Had such a procedure been adopted by the

prosecution, then it would have been a foolproof case

for it and against the Appellant.

45. Now, after the incorporation of Section 53 (A) in

the Criminal Procedure Code, w.e.f. 23.06.2006,

brought to our notice by learned counsel for the

Respondent-State, it has become necessary for the

prosecution to go in for DNA test in such type of

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cases, facilitating the prosecution to prove its case

against the accused. Prior to 2006, even without the

aforesaid specific provision in the Cr.P.C.

prosecution could have still resorted to this

procedure of getting the DNA test or analysis and

matching of semen of the Appellant with that found on

the undergarments of the prosecutrix to make it a

fool proof case, but they did not do so, thus they

must face the consequences.

46. We have also gone through the orders of dismissal

pased by this Court in Crl.M.P. No. 9646 on 15.06.2009

as also of the Review Petition dated 05.11.2009 filed

by Smt. Hardevi. Admittedly, the said orders passed in

the SLP and Review Petition by this Court did not assign

any reasons for the dismissal, thus it would not be

proper and safe for us to place reliance thereon.

47. Thus, looking to the matter from all angles, we are

of the considered opinion that the conviction of the

Appellant cannot be upheld.

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48.Thus, appeal is hereby allowed. Judgment and order of

conviction as recorded by the trial court and

confirmed by learned Single Judge of the High Court

qua the appellant are hereby set aside and quashed.

The Appellant is acquitted of all the charges.

49. He be set at liberty forthwith if not required in any

other criminal case.

......................J.

[DALVEER BHANDARI]

......................J.

[DEEPAK VERMA]

New Delhi

July 4, 2011

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lacunae