Parkash Chand vs The State Of Himachal Pradesh

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:

Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2019.02.12 16:41:41 IST Reason:

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.

2 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 3

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 4

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 5

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, 6

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 7

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.” 8

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 9

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 9 th

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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.” 19

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 20

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 21

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 22

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:

23

“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 24

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;

25 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 26

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