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2012 (4) Supreme 59
SUPREME COURT OF INDIA
(Dr. B.S. Chauhan & Dipak Misra, JJ.)
Narender Kumar — Appellant
versus
State (NCT of Delhi) — Respondent
Criminal Appeal Nos.2066-67 of 2009
Decided on 25-05-2012
(b) Indian Penal Code, 1860 – Section 376 – Conviction – Can be based on sole evidence of prosecutrix if inspiring confidence – Otherwise needs corroboration – If not corroborated, conviction will be improper. (Paras 16 and 17)
AIR 2003 SC 818; AIR 2006 SC 508; (1999) 1 SCC 220; (2010) 14 SCC 534; AIR 2009 SC 858; (2009) 15 SCC 566 – Relied upon
(c) Indian Penal Code, 1860 – Section 376 – Woman of easy virtues – Not to be inferred lightly – Even such woman has right to refuse to submit herself to sexual intercourse to anyone and everyone – Her evidence cannot be discarded. (Para 21)
AIR 1996 SC 1393; AIR 2005 SC 1248 – Relied upon
(d) Evidence Act, 1872 – Sections 53 and 54 – Unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration. (Para 22)
(e) Indian Penal Code, 1860 – Section 376 – Benefit of doubt – Prosecution has to establish its case beyond reasonable doubt – Suspicion however great cannot be basis of conviction – Story of the prosecutrix appears to be improbable and is not corroborated – Accused entitled to benefit of doubt. (Paras 23 and 24)
AIR 1979 SC 185; AIR 2003 SC 1639 – Relied upon
Facts of the case:
It is a case relating to offence u/s 376 IPC.
Finding of the Court:
Appellant is entitled to benefit of doubt.
JUDGMENT
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 allowed.
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 the record.
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
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