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SUPREME COURT OF INDIA
R. BANUMATHI, INDIRA BANERJEE, JJ.
State (Govt. of NCT of Delhi) – Appellant
Versus
Pankaj Chaudhary & Ors. – Respondents
Criminal Appeal Nos. 2299 & 2298 of 2009
Decided On : 30-10-2018
(b) Indian Penal Code, 1860 – Section 376(2)(g) – Prosecutrix alleged to be of immoral character – That does not give any right to the accused persons to commit rape on her against her consent – She is also entitled to privacy and her evidence cannot be thrown overboard – Branding a woman of loose virtue from circumstance not permissible. (Para 22, 23)
(1991) 1 SCC 57; (1996) 2 SCC 384 – Relied upon
(c) Criminal trial – Conviction – Can be sustained on sole testimony of prosecutrix if inspiring confidence – Instantly prosecutrix testimony corroborated by her mother and medical evidence – No motive for any false implication – No infirmity in conviction. (Para 24, 25, 45)
(2006) 1 SCC 283; (2000) 5 SCC 30 – Relied upon
(d) Constitution of India – Article 227 – High Court reversing trial court judgment and order on surmises and conjectures – Not permissible. (Para 30, 32)
(e) Constitution of India – Article 227 – Passing disparaging remarks against police officials – Without affording opportunity of hearing – Remarks liable to be set aside. (Para 35, 36)
(1987) 2 SCC 109; (2001) 1 SCC 596 – Relied upon
(f) Code of Criminal Procedure, 1973 – Section 195 and 340 – Prosecution u/s 195 can be directed only after following procedure u/s 340 – Prosecution warranted only when perjury is deliberate – High Court directing prosecution u/s 195 without affording opportunity of hearing and without recording a finding – Liable to be set aside. (Para 38, 41, 42)
(2017) 1 SCC 113; (2018) 6 SCC 151; (1971) 1 SCC 774 – Relied upon
Facts of the case:
The trial court convicted accused/respondents under Section 376(2)(g) IPC and sentenced each of them to undergo rigorous imprisonment for ten years.
The accused/respondents filed appeal before the High Court.
The High Court by the impugned judgment allowed the appeal by setting aside the conviction of the accused/respondents under Section 376(2)(g) IPC. The High Court held that regarding the ladies quarrel at 07.30 p.m. on 28.07.1997 involving sex workers including the prosecutrix at Shaheed Bhagat Singh Jhuggi, FIR No.558/97 was registered and in connection with the said FIR No.558/97, the prosecutrix and other ladies were arrested and that they were in custody with the police till at least 09.30 PM. The High Court therefore doubted the prosecution case in FIR No.559/97 and held that when the prosecutrix and other ladies were in custody with the police between 08.50 PM till 10.00 PM on 28.07.1997, it is quite impossible that the occurrence of rape would have taken place at 09.00 PM on 28.07.1997 as alleged by the prosecutrix.
Based upon the Report of Joint Commissioner (Ex.-DW6/A) and the Report of DCP, the High court directed the Registrar General of the High Court to make a complaint against SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-5) before the concerned court for prosecution for the offences under Sections 193 and 195 IPC.
Finding of the Court:
Impugned judgment cannot be sustained.
Result: Appeal allowed.
Key Points: - Any material produced before the appellate court to fill gaps by either side cannot be considered to reverse the trial court’s judgment (!) . - Being a woman of immoral character does not give anyone the right to commit rape on her against her consent (!) (!) . - A conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence (!) (!) . - Disparaging remarks passed by the High Court against police officials without affording an opportunity of hearing are liable to be set aside (!) (!) . - Prosecution under Section 195 of the CrPC can be directed only after following the procedure under Section 340 of the CrPC (!) (!) (!) . - The court must record a finding that it is expedient in the interest of justice before directing prosecution under Section 340 of the CrPC (!) (!) . - The High Court’s decision to reverse the conviction based on surmises and conjectures is not permissible (!) (!) . - A decision cannot be based on surmises and conjectures (!) (!) .
JUDGMENT :
R. Banumathi, J.
These appeals arise out of the judgment dated 05.05.2009 passed by the High Court of Delhi in Criminal Appeal No.384 of 2000 in and by which the High Court allowed the appeal filed by the respondents/accused thereby setting aside their conviction under Section 376(2)(g) IPC passed by the trial court and the sentence of imprisonment imposed upon them. By the impugned judgment, the High Court also issued direction to lodge a complaint against the appellants-police officials (CA No.2298/2009) for prosecuting them under Sections 193 and 195 IPC.
2. Case of prosecution is that the accused/respondents who were living in the neighbourhood of the prosecutrix (PW-1) at Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her jhuggi at about 09.00 PM on 28.07.1997 and demanded a bidi from her. She refused to give them any bidi. Thereafter, they demanded water which she again refused. The prosecutrix has alleged that thereafter respondents/accused switched off the electricity and accused/respondent No.2 Gunjesh Chaudhary caught hold of her hands and the other three accused had torn her clothes and committed rape on her in turn. The prosecutrix has alleged that she raised an alarm and fell unconscious thereafter. On hearing the alarm, Bashira Khatoon, mother of the prosecutrix (PW-3) came there and saw the four accused/respondents coming out of the jhuggi. Bashira Khatoon (PW-3) found the prosecutrix lying unconscious inside the jhuggi. Police Control Room (PCR) van took the prosecutrix to All India Institute of Medical Sciences (AIIMS) hospital. At about 11.45 PM, the prosecutrix was medically examined by Dr. Monika and it was noted in MLC (Ex.-PW6/A) that there were "bruises of 4 x 4 cm on medial aspects of both thighs of the prosecutrix". The blouse of the prosecutrix was found torn in the back side along the left sleeve.
3. At about 09.30 PM, information was received in the Police Station, Hauz Khaz PCR/South District regarding some quarrel at Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with Constable Khushi Ram (PW-4) reached the spot and learnt that the prosecutrix was taken to the hospital by a PCR Van. SI Jai Bhagawan (PW-7) along with the constable went to the AIIMS and found PW-1 Phoola (Prosecutrix) there. Doctor declared PW-1 fit to make statement and SI Jai Bhagwan recorded her statement concerning allegations of rape by the accused/respondents. The statement of the prosecutrix was recorded at 02.30 AM on 29.07.1997 and ruqqa for registration of the case under Section 376 IPC was sent at 02.50 AM. A case under FIR No.559/97 under Section 376 IPC read with Section 34 IPC was registered at 03.15 AM on 29.07.1997.
4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, the prosecutrix was medically examined by Dr. Monika. It was noted in the MLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on the medial aspects of both the thighs of the prosecutrix. The blouse was torn along the back of the left sleeve and at the time of preparing the MLC (Ex.-PW6/A); the clothes of prosecutrix could not be sealed since she did not have spare clothes. Later her petticoat was collected and sent for chemical examination. Upon completion of investigation, charge sheet was filed against the accused/respondents.
5. Charges were framed against the accused/respondents under Section 376(2)(g) IPC to which they pleaded not guilty. To bring home the guilt of the accused, the prosecution examined seven witnesses and exhibited number of documents. The accused/respondents in their statement under Section 313 Cr.P.C. stated that PW-1-Prosecutrix was of bad character and she was indulging in prostitution and they have lodged complaint against her and therefore, they have been falsely implicated in the rape case.
6. Upon consideration of evidence of PW-1-Prosecutrix and medical report, forensic report and o
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