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2011 Supreme(UK) 351
2011 (2) N.C.C. 327
SUPREME COURT OF INDIA
Dalveer Bhandari and Deepak Verma
Criminal Appeal No. 1252 of 2011
KRISHAN KUMAR MALIK – Appellant
Versus
STATE OF HAYANA – Respondent
Decided on : 04.07.2011
For the Appellant : Mr. Jaspal Singh, Sr. Adv., Mr. Sanjeev Anand, Mr. Yakesh Anand, Mr. Nimit Matur, Mr. Vikram Anand, Advs., with him.
For the Respondent: Mr. Roopansh Purohit, Mr. Ramesh Kumar (for Kamal Mohan Gupta), Advs.
Headnote:(A) Indian Penal Code, 1860, Sec. 376 — Offence of rape — Punishable under — Medical Evidence of victim — Prosecutrix found habitual to sexual intercourse prior to alleged incident — Medico legal report revealed that she had not received any significant injuries on other parts of her body and injuries on her private parts — As were mentioned by her in FIR — Prosecution case highly were dented. (Para 19)
(B) Indian Penal Code, 1860, Sec. 366 — Non-raising of alarm after alleged abduction — Renders evidence of prosecutrix shaky and untrustworthy. (Para 20)
(C) Test Identification Parade — Non-holding of — Effect — Such failure to hold test identification parade, of material significance.
(Para 25)
(D) Dock Identification of accused — Significance — Is rendered meaningless when, admittedly accused were shown in police station after their arrest. (Para 26)
(E) Investigation — Non-preparation of spot map by I.O. — Therefore, benefit accrues to accused. (Paras 27, 28 & 29)
(F) Indian Evidence Act, 1872, Sec. 6 — Material witnesses — Non-examination of — Effects — Stated. (Paras 32 to 36)
(G) Indian Penal Code, 1860, Sec. 376 — Rape — Conviction for — 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. (Para 31)
(H) Criminal Procedure Code, 1973, Secs. 164, 161 — Prosecution had adopted a peculiar mode in the instant case — That first statement of prosecutrix was recorded u/s 164 of the Cr.P.C. — And her further statement u/s 161 of the Cr.P.C. — In fact, the procedure should have been otherwise — This shows that right from the beginning the prosecution was doubtful on the trustworthiness of the prosecutrix herself — That was the reason that she was first bound down by her statement u/s 164 of the Criminal Code. (Paras 38, 39)
(I) Indian Penal Code, 1860, Sec. 376 — Offence of rape — Non-sending of undergarments of prosecutrix for analysis in forensic laboratories — Lacuna on the part of prosecution such act goes in favour of accused.
(Paras 40, 43, 44)
(J) Medical Jurisprudence — Taylor's 2nd 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. (Para 43)
(K) Criminal Procedure Code, 1973, Sec. 53(A) w.e.f. 23.6.2006 and I.P.C. 1860, Sec. 376 — By incorporation of Sec. 53(A) in Criminal Code — It had become necessary for the prosecution to go in for DNA test in rape 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 — On failure of such act, appeal allowed — Order of conviction of the appellant — Set aside and quashed.
(Paras 45 & 48)
¼v½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & ds vUrxZr n.Muh; & cykRdkj ds vijk/k esa ihfM+rk ds fpfdRlh; lk{; esa ik;k x;k fd vkjksfir ?kVuk ls iwoZ ihfM+rk eSFkqu dh vH;Lr Fkh & fpfdRlh; fof/kd fjiksVZ ls izdV gqvk fd mlds 'kjhj ds vU; Hkkx vkSj xqIrkax esa dksbZ [kkl pksV ¼?kko½ ugha yxk gqvk Fkk tSlk fd mlds }kjk izFke lwpuk fjiksVZ esa n'kkZ;k x;k Fkk & vfHk;kstu dk dsl vR;Ur gYdk FkkA
¼izLrj 19½
¼c½ Hkkjrh; n.M lafgrk] 1860] /kkjk 366 & vkjksfir vigj.k ds ckn 'kksj u epkuk ihfM+rk ds lk{; dks vfuf'pr vkSj vfo'oluh; cuk nsrk gSA ¼izLrj 10½
¼l½ f'kuk[r ijsM ds u gksus dk izHkko & ij[k f'kuk[r ijsM ds djkus esa vlQy jguk cgqr egRiw.kZ gSA ¼izLrj 25½
¼n½ vfHk;qDr dh dV?kjs esa f'kuk[r djk;s tkus dk egRo vFkZghu gks tkrk gS tcfd Lohdk;Z :i ls vfHk;qDrksa dks mudh fxj¶rkjh ds i'pkr iqfyl Fkkus esa fn[kk;k x;k FkkA ¼izLrj 26½
¼;½ foospuk & foospuk vf/kdkjh }kjk ?kVukLFky dk ekufp= u cuk;s tkus dk ykHk vfHk;qDr dks tkrk gSA ¼izLrj 27] 28 ,oa 29½
¼j½ Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk 5 & esa egRoiw.kZ lk{kh dk ijh{k.k uk djk;s tkus dk izHkko crk;k x;k gSA ¼izLrj 32 ls 36½
¼y½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & cykRdkj ds fy, nks"k flf) & fu%lansg gh ;g lp gS fd ,d vfHk;qDr dks cykRdkj ds vijk/k dk nks"kh ik;k x;k Fkk & ihfM+rk dk ,d ek= lk{; ml n'kk esa i;kZIr gS ;fn ;g fo'oluh; gS vkSj iw.kZr;k U;klh] nks"kjfgr gS vkSj ;g mPp Js.kh dk Hkh gksuk pkfg,A ¼izLrj 31½
¼o½ n.M izfØ;k lafgrk] 1973] /kkjk 164] 161 & izLrqr dsl esa vfHk;kstu i{k }kjk ,d vn~Hkqr rjhdk viuk j[kk Fkk fd ihfM+rk dk izFke c;ku /kkjk 164 ds vUrxZr ntZ fd;k x;k Fkk vkSj mldk vxyk c;ku /kkjk 161 CrPC ds rgr ntZ fd;k x;k Fkk & okLro esa izfØ;k vU; izdkj ls viukbZ tkuh Fkh & bl ls izdV gksrk gS fd izkjaHk ls gh vfHk;kstu ihfM+rk dh viuh fo'oluh;rk ds ckjs esa lansg iw.kZ fLFkfr esa Fkk & ;gh dkj.k Fkk fd mldk igyk c;ku /kkjk 164 CrPC ds vUrxZr ntZ djk;k x;k FkkA ¼izLrj 38] 39½
¼'k½ Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & ds vUrxZr cykRdkj dk vijk/k & ihfM+rk ds vUnj ds diM+ksa dks jklk;fud iz;ksx'kkyk esa fo'ys"k.k gsrq u Hkstk tkuk & vfHk;kstu dh vksj ls deh cjrh xbZ ftl dk ykHk vfHk;qDr ds fgr esa tkrk gSA
¼izLrj 40] 43] 44½
¼"k½ fpfdRlk foKku & Vsyj ds f}rh; laLdj.k ¼1965½ & fpfdRlk foKku ds fl)kUr vkSj vH;kl fuEu izdkj ls gS & ,d efgyk ds 'kjhj esa dkQh yEcs le; rd oh;Z O;kid :i ls ?kwerk jgrk gS vkSj mldh gypy xhys uewus esa ns[kh tk ldrh gS & lgh le; ftlds nkSjku oh;Z tkus ds ckn thfor jg ldrk gS] Li"V :i ls ifjHkkf"kr ugha fd;k tk ldrk ijUrq ;g ?kaVksa dk ekeyk gSA ¼izLrj 43½
¼l½ n.M izfØ;k lafgrk] 1973] /kkjk 53(A) fnukad 23-6-2006 ls izHkkfor vkSj Hkkjrh; n.M lafgrk] 1860] /kkjk 376 & n.M izfØ;k esa /kkjk 53(A) ds tksM+s tkus ls] vfHk;kstu i{k ds fy, ;g vko';d gks x;k Fkk fd cykRdkj ds dsl esa vfHk;kstu dks viuk dsl fl) djus gsrq vfHk;qDr ds fo#) DNA VSLV djk;k tkuk visf{kr Fkk & lu~ 2006 ls iwoZ CrPC esa mijksDr fof'k"V izkfo/kku fd;s tkus ds fcuk Hkh vfHk;kstu DNA VSLV djkus dh izfØ;k dks rc Hkh vey esa yk ldrk Fkk vFkok vihykUV ds oh;Z ls feyku djus gsrq ihfM+rk ds var% oL=ksa ij ik;s x;s oh;Z ls bls Lo;a fl) dsl cukus gsrq eSp dj ldrk Fkk & bl dk;Z dks djus esa vlQy jgus ds dkj.k vihy Lohdkj dh xbZ & vihykUV dk nks"kflf) dk vkns'k [kf.Mr fd;k x;k vkSj jn~n fd;k x;kA ¼izLrj 45 ,oa 48½
Deepak Verma, J. — 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 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. 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 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 : 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 accused. She had passed her 10th class. He 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 vacatio
