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2011 (1) Supreme 418
SUPREME COURT OF INDIA
Aftab Alam and R.M. Lodha, JJ.
State of U.P. — Appellant
versus
Chhoteylal — Respondent
Criminal Appeal No. 769 of 2006
Decided on : 14-1-2011
(b) Indian Penal Code, 1860 – Section 375 – Age – All oral evidence showing age of the prosecutrix as 13 years – However medical evidence putting her age at 17 years – Accepted by trial court – High Court conjecturing the same to be 19 years by adding two years to the determination by medical doctor – Not valid – There is no rule that two years is to be added to medical estimation of age. (Para 10)
(c) Indian Penal Code, 1860 – Section 375, clause sixthly – Prosecutrix being more than 16 years of age, clause sixthly not attracted. (Para 13)
(d) Indian Penal Code, 1860 – Section 375 – Consent – Courts should analyse all evidence and surrounding circumstances to determine whether then consent in rape case was voluntary or undere a misconception – Evidence of a prosecutrix cannot be tested with suspicion as that of an accomplice. (Para 19)
(e) Indian Penal Code, 1860 – Section 375 – Evidence of prosecutrix does not need corroboration – Her evidence may sustain a conviction – a
(f) Indian Penal Code, 1860 – Section 375 – Guidelines for evaluating evidence of prsecutrix culled out. (Para 22)
(g) Indian Penal Code, 1860 – Section 375 – Prosecutrix abducted by two male adults and taken to unknown place – Under constant threat to life – Not raising alarm at an unknown public place cannot lead to inference of consent or willingness. (Para 23)
(h) Criminal Trial – Rape – False implication – Nothing to show that prosecurtrix had any motive for falsely implicating the accused in rape case risking her own reputation – Contention rejected. (Para 24)
(i) Indian Penal Code, 1860 – Section 375 – Prosecutrix recovered almost after three weeks – Sign of forcible intercourse would not persist for that long period – It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal part of the victim – More so when the victim was not in a position to struggle being in a far away unknown place. (Para 25)
(j) Code of Criminal Procedure, 1973 – Section 157 – Delay in lodging FIR, if explained, is not fatal. (Para 26)
(k) Administration of Justice – Criminal Justice delivery system – Present state of Criminal Justice delivery system and crime investigations lamented – Much is desired to be done. (Para 28)
Facts of the case:
1. The prosecutrix was kidnapped ad raped by the accused.
2. Trial court found A-1 guilty under Sections 363, 366, 368 and 376, IPC and sentenced him to undergo 7 years’ rigorous imprisonment under Section 376 IPC and the different sentences for other offences which were ordered to run concurrently.
3. The High Court reversed the judgment of the trial court and acquitted the accused.
Finding of the Court:
Impugned judgment cannot be sustained being cryptic and perfunctory and suffering from non-application of mind.
Result : Appeal allowed.
Key Points: - The court rejected adding two years to the medical estimation of age without a legal basis (!) . - Consent must be evaluated based on all surrounding circumstances and the victim's exercise of free choice (!) (!) . - The evidence of a prosecutrix cannot be tested with suspicion as that of an accomplice and may sustain conviction on its own (!) (!) .
JUDGEMENT
R.M. Lodha, J. —
The State of Uttar Pradesh is in appeal, by special leave, because the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow reversed the judgment of the trial court and acquitted the respondent.
2. The prosecution case in brief is this: On September 19, 1989 the prosecutrix (name withheld by us) had gone to relieve herself in the evening. Ram Kali (A-3) followed her on the way. While she was returning and reached near the plot of one Vijai Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from behind; A-1 caught hold of her and when she raised alarm, A-1 showed fire-arm to her and gagged her mouth. A-1 along with A-2 and A-3 brought the prosecutrix upto the road. There, A-3 parted company with A-1 and A-2. A-1 and A-2 then took the prosecutrix to Village Sahora. On the night of September 19, 1989, the prosecutrix was kept in the house of Girish and Saroj Pandit in Village Sahora. On the next day i.e., September 20, 1989, in the wee hours, A-1 and A-2 took the prosecutrix in a bus to Shahajahanpur where she was kept in a rented room for few days. During their stay in Shahajahanpur, A-1 allegedly committed forcible intercourse with the prosecutrix. Whenever prosecutrix asked for return to her house, A-1 would gag her mouth and threaten her. In the meanwhile, Rampal - brother of the prosecutrix - made a complaint to the Superintendent of Police, Hardoi on September 28, 1989 that A-1, A-2 and A-3 have kidnapped her sister (prosecutrix) on September 19, 1989. Based on this complaint, the First Information Report (FIR) was registered on September 30, 1989. The prosecutrix was recovered by the police on October 13, 1989 from Shahabad - Pihani Road near Jalalpur culvert. On that day itself, the prosecutrix was sent for medical examination to the Women Hospital, Hardoi where she was examined by Dr. Shakuntala Reddy. Ram Manohar Misra to whom the investigation of the case was entrusted then took steps for determination of the age of the prosecutrix as advised by the doctor and sent her for X-ray examination.
3. On October 17, 1989, the prosecutrix was produced before the Judicial Magistrate I, Hardoi, where her statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate.
4. A-1 was arrested on December 2, 1989. On completion of investigation, A-1 was chargesheeted for the offences punishable under Sections 363, 366, 368 and 376 of the Indian Penal Code (IPC); A-2 was chargesheeted under Sections 363, 366 and 368, IPC and A-3 under Sections 363 and 366, IPC.
5. The prosecution in support of its case examined five witnesses, namely, complainant - Rampal (PW-1), prosecutrix (PW-2), Investigating Officer - Ram Manohar Misra (PW-3), Subhash Chandra Misra - Head Constable (PW-4) and Dr. Shakuntala Reddy (PW-5).
6. A-2 had died and the trial abated as against him. The III Additional Sessions Judge, Hardoi vide his judgment dated September 5, 1990 acquitted A-3 as the prosecution was not able to establish any case against her. However, on the basis of the prosecution evidence, the III Additional Sessions Judge held that the prosecutrix was about 17 = years of age at the time of occurrence of crime and found A-1 guilty under Sections 363, 366, 368 and 376, IPC and sentenced him to undergo 7 years’ rigorous imprisonment under Section 376 IPC and the different sentences for other offences which were ordered to run concurrently.
7. A-1 challenged the judgment passed by the III Additional Sessions Judge, Hardoi before the Allahabad High Court, Lucknow Bench, Lucknow. The High Court vide its judgment dated March 11, 2003 reversed the judgment of the trial court and acquitted A-1. While acquitting A-1, the High Court gave three reasons, namely; (one) kidnapping took place on September 19, 1989 whereas the report of the occurrence was lodged after ten days and there was no reasonable and plausible explanation as to why the report could not be lodged promptly and why it had been delayed for ten days; (t
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