# 2 S.C.R. 411 RAJESH PATEL v. STATE OF JHARKHAND

- **Citation:** [2013] 2 S.C.R. 411
- **Court:** Supreme Court of India
- **Decided:** 2013-03-15
- **Case number:** Criminal Appeal No. 1149 of 2008
- **Bench:** Chandramauli Kr. Prasad, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-411-rajesh-patel-v-state-of-jharkhand-28723
- **Pages:** 27

## Headnote

PENAL CODE, 1860:
A
B
c
s.376 - Conviction by courts below - Held: In the instant
case, prosecution version as narrated by prosecutrix, is most
i:nprobable and unnatural - The witness who is stated to have
rescued the prosecutrix from the place of occurrence and the
employer of the prosecutrix did not support the prosecution
0
case - The doctor who medically examined the prosecutrix
and the 10 were not examined - Courts below erred in holding
that their non-examination did not prejudice the defence -
Further, the inordinate delay of 11 days is fatal to prosecution
case - The testimony of the prosecutrix is most unnatural and
E
improbable to believe and, therefore, it does not inspire
confidence for acceptance of the same for sustaining the
conviction and sentence - Prosecution case has created
reasonable doubt - Therefore, the benefit of doubt must enure
to the appellant - The impugned judgment is set aside -
F
Constitution of India, 1950 - Art.136 .
. The appellant was prosecuted for committing rape on
her acquaintance and class-mate, who was working as
a nurse. The trial court convicted the appellant u/s 376
IPC and sentenced him to undergo 7 years RI. The High
G
Court affirmed the conviction and the sentence.
Allowing the appeal, the Court
411
H
412
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A
HELD: 1.1 The prosecution story as narrated by the
prosecutrix is most improbable and unnatural. The
prosecutrix is the solitary witness to prove the charge.
Her version is sought to be corroborated by her mother
PW2 who has supported the prosecution case on the
B basis of narration of the alleged offence by the prosecutrix
to her. It is an undisputed fact that both the appellant and
the prosecutrix were class-mates and had good
acquaintance with each other as they were exchanging
books. The prosecutrix stated that on 14.2.1993, she
c went to the house of the appellant to take her book and
when she entered the house he locked the door from
inside, and committed rape on her and threatened her
with a knife; that the appellant then locked her in the
house and went away; that after about half an hour, PW3,
0 a common friend of both, unlocked the room. During this
period she did not raise alarm to draw the attention of the
neighbours. This would clearly go to show that the
testimony of the prosecutrix is most unnatural and
improbable to believe and it does not inspire confidence.
E [para 8] [418-H; 419-B-F]
1.2 Further, there is an inordinate delay of nearly 11
days in lodging the FIR. The explanation given by the
prosecutrix is that she went to her house and narrated
the incident to her mother, and on assurance of PW3 that
F he would take action in the matter, her mother remained
silent for 2-4 days. The inordinate delay of 11 days in
lodging the FIR is fatal to the prosecution case. The
findings and observations made by the courts below in
accepting the delay in lodging the FIR by assigning
G unsatisfactory reasons cannot be accepted by this Court
as the findings and reasons are erroneous in law. [para
9] [420-B-C; 421-B-C]
1.3 Besides, PW3, who is a common friend of the
appellant and the prosecutrix and stated to have rescued
H
RAJESH PATEL v. STATE OF JHARKHAND
413
her from the place of occurrence, has categorically stated
A
that he does not know anything about the case. He has,
thus, not supported the version of the prosecution. PW4
has stated in his evidence that the prosecutrix was
getting nursing training privately in his chamber. He has
been treated as hostile and was cross-examined by the
B
prosecution. In . his cross-examination he has
categorically stated that he had told the police that he did
not know anything about the incident. He has further
stated that neither the prosecutrix nor her mother told him
about the incident. The evidence of PW3 and PW4 has c
seriously affected the prosecution case. [para 10 and 12]
[421-D-E, F-G; 422-F]
1.4 Further, neither the Doctor, who is stated to have
medically examined the prosecutrix, nor t

## Text

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(2013] 2 S.C.R. 411
RAJESH PATEL
v.
STATE OF JHARKHAND
(Criminal Appeal No. 1149 of 2008)
MARCH 15, 2013.
[CHANDRAMAULI KR. PRASAD AND
V. GOPALA GOWDA, JJ.]
PENAL CODE, 1860:
A
B
c
s.376 - Conviction by courts below - Held: In the instant
case, prosecution version as narrated by prosecutrix, is most
i:nprobable and unnatural - The witness who is stated to have
rescued the prosecutrix from the place of occurrence and the
employer of the prosecutrix did not support the prosecution
0
case - The doctor who medically examined the prosecutrix
and the 10 were not examined - Courts below erred in holding
that their non-examination did not prejudice the defence -
Further, the inordinate delay of 11 days is fatal to prosecution
case - The testimony of the prosecutrix is most unnatural and
E
improbable to believe and, therefore, it does not inspire
confidence for acceptance of the same for sustaining the
conviction and sentence - Prosecution case has created
reasonable doubt - Therefore, the benefit of doubt must enure
to the appellant - The impugned judgment is set aside -
F
Constitution of India, 1950 - Art.136 .
. The appellant was prosecuted for committing rape on
her acquaintance and class-mate, who was working as
a nurse. The trial court convicted the appellant u/s 376
IPC and sentenced him to undergo 7 years RI. The High
G
Court affirmed the conviction and the sentence.
Allowing the appeal, the Court
411
H
412
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A
HELD: 1.1 The prosecution story as narrated by the
prosecutrix is most improbable and unnatural. The
prosecutrix is the solitary witness to prove the charge.
Her version is sought to be corroborated by her mother
PW2 who has supported the prosecution case on the
B basis of narration of the alleged offence by the prosecutrix
to her. It is an undisputed fact that both the appellant and
the prosecutrix were class-mates and had good
acquaintance with each other as they were exchanging
books. The prosecutrix stated that on 14.2.1993, she
c went to the house of the appellant to take her book and
when she entered the house he locked the door from
inside, and committed rape on her and threatened her
with a knife; that the appellant then locked her in the
house and went away; that after about half an hour, PW3,
0 a common friend of both, unlocked the room. During this
period she did not raise alarm to draw the attention of the
neighbours. This would clearly go to show that the
testimony of the prosecutrix is most unnatural and
improbable to believe and it does not inspire confidence.
E [para 8] [418-H; 419-B-F]
1.2 Further, there is an inordinate delay of nearly 11
days in lodging the FIR. The explanation given by the
prosecutrix is that she went to her house and narrated
the incident to her mother, and on assurance of PW3 that
F he would take action in the matter, her mother remained
silent for 2-4 days. The inordinate delay of 11 days in
lodging the FIR is fatal to the prosecution case. The
findings and observations made by the courts below in
accepting the delay in lodging the FIR by assigning
G unsatisfactory reasons cannot be accepted by this Court
as the findings and reasons are erroneous in law. [para
9] [420-B-C; 421-B-C]
1.3 Besides, PW3, who is a common friend of the
appellant and the prosecutrix and stated to have rescued
H
RAJESH PATEL v. STATE OF JHARKHAND
413
her from the place of occurrence, has categorically stated
A
that he does not know anything about the case. He has,
thus, not supported the version of the prosecution. PW4
has stated in his evidence that the prosecutrix was
getting nursing training privately in his chamber. He has
been treated as hostile and was cross-examined by the
B
prosecution. In . his cross-examination he has
categorically stated that he had told the police that he did
not know anything about the incident. He has further
stated that neither the prosecutrix nor her mother told him
about the incident. The evidence of PW3 and PW4 has c
seriously affected the prosecution case. [para 10 and 12]
[421-D-E, F-G; 422-F]
1.4 Further, neither the Doctor, who is stated to have
medically examined the prosecutrix, nor the 1.0. has been·
examined before the trial court to prove the prosecution
D
case. The appellant was right in bringing to the notice of
the trial court as well as the High Court that nonexamination of the said two important witnesses has
prejudiced his case. Therefore, the finding and reasons
recorded by both the trial court as well as the High Court
E
that non-examination of the doctor and the 1.0. has not
prejudiced the case of the appellant is totally an
erroneous approach. For this reason also, the findings
and reasons recorded in the impugned judgment that the
trial court was justified in holding that the prosecution
F
has proved the charge against the appellant and that he
has committed the offence on the prosecutrix, is totally
erroneous and the same is wholly unsustainable in law.
[para 11-12] [421-H; 422-A; 423-C-E]
1.5 The courts below could not have, at any stretch G
of imagination, on the basis of the evidence on record
held that the appellant is guilty of committing the offence
punishable u/s 376, IPC. The prosecution case is neither
natural nor consistent nor probable to believe to sustain
the conviction and sentence of the appellant. Therefore,
H
414
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A the benefit of doubt must enure to the appellant. The
impugned judgment requires to be interfered with by this
Court in exercise of its jurisdiction, and is accordingly set
aside. [para 12, 15 and 16] [422-F-G; 425-D-F-G]
B
Raju v. State of Madhya Pradesh (2008) 5 SCC 133 -
referred to
c
Ram Kumar v. State of Haryana (2006) 9 SCC 589 -
cited.
Case Law Reference:
(2006) 9 sec 589
(2008) 5 sec 133
cited
referred to
para 5
para 14
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1149 of 2008.
From the Judgment & Order dated 14.11.2006 of the High
Court of Jharkhand in Criminal Appeal No. 58 of 1999.
E
Sanjay Hegde, Shankar N., Arijit Majmudar (For N.
F
Annapoorani) for the Appellant.
Anil Kumar Jha, S.K. Divakar for the Respondent.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. This criminal appeal is
directed against the judgment of the High Court of Jharkhand
at Ranchi passed in Criminal Appeal No.58 of 1999 dated
14.11.2006 wherein it has confirmed the judgment and order
G passed by the 1st Additional Sessions Judge, Jamshedpur in
S.T.No.168 of 1994/172 of 1995. By the said judgment, the
appellant herein was convicted under Section 376, 1.P.C. and
was sentenced to undergo rigorous imprisonment for a period
of seven years.
H
2. The prosecution case in nutshell is stated hereunder for
RAJESH PATEL v. STATE OF JHARKHAND
415
[V. GOPALA GOWDA, J.]
the purpose of appreciating the rival legal contentions urged
A
i~ this appeal.
3. The prosecutrix in this case has made a statement
before the police at Ghatsila police station, stating that she has
narrated the incident which took place on 14.2.1993 at 11.00
B
a.m. in the house of the appellant. She stated that she was
working as a nurse in the Nursing Home of Dr. Prabir Bhagat
at Moubhandar in the jurisdiction of Ghatsila, East Singhbhum
District. The house of the appellant Rajesh, who appears to be
a classmate of prosecutrix, is situated near the Nursing Home
C
in which the prosecutrix was working as a nurse. It is the case
of the prosecution that at the request of the appellant she went
to his house in order to get back her book from him. As soon
as she entered the house of the appellant, he closed the door
from inside. At that time the members of the appellant's family
were not present inside the house. When the prosecutrix tried
D
to raise alarm, she was terrorized by the appellant who
threatened her that she would be killed by a knife if she raises
alarm. Thereafter, the appellant committed rape on her. When
she felt pain on her private part, she wanted to cry but she was
silenced by the appellant by displaying a knife to her. After
E
committing the offence of rape the appellant left the house and
locked the door from outside. After half an hour, one Purnendu
Babu of Chundih came and unlocked the house and the
prosecutrix returned to her house silently. It is further the case
of the prosecution that she went to her house and narrated the
F
incident to her mother. However, the mother of the prosecutrix
remained silent for two to four days on the assurance of Mr.
Purnendu Babu that he would take action in the matter.
Additionally, it was alleged that the appellant at the time of
committing the offence had also threatened the prosecutrix that
G
she would be killed if she lodges a complaint against him.
4. The trial court convicted the accused and sentenced him
to undergo imprisonment of seven years. The correctness of
the same was challenged before the High Court of Jharkhand
H
416
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A by filing Criminal Appeal No.58 of 1999 urging various legal
contentions. After considering the legal contentions on behalf
of the appellant, the High Court has affirmed the conviction and
sentence of the accused and dismissed the appeal. The
correctness of the same is challenged in this appeal urging the
B following legal contentions: that the courts below have failed to
appreciate that the sole testimony of the prosecutrix could not
have been used against the appellant to hold him guilty of
offence under Section 376, IPC; that the prosecution has not
examined either the doctor who conducted the medical
c examination of the prosecutrix or the investigating officer.
Therefore, the finding of fact holding that the appellant is guilty
of the offence is erroneous in law and liable to be set aside.
Another ground urged by Mr.Sanjay Hegde, the learned counsel
for the appellant, is that the courts below failed to appreciate
·. D that the story of confinement of the prosecutrix in the house of
the appellant cannot be sustained. This is because PW3
Purnendu Babu, a common friend of the appellant and the
prosecutrix, who is alleged to have rescued the prosecutrix from
the alleged confinement, did not support the same, thereby
E breaking the chain of events of the prosecution story. Further,
it is urged by him that the courts below failed to note the delay
in lodging the FIR which has not been adequately explained.
The Courts below have explained the delay in filing FIR on the
basis of the intervention of PW3 and PW4, namely, Purnendu
Babu and the Doctor of the Nursing Home in which the
F prosecutrix was working, as they assured the victim to settle
the matter between the parties. However, both of these
witnesses were declared either tendered by the prosecution or
hostile during the course of the trial. Further, the appellant
contends that the learned courts below failed to take into
G consideration of the serious contradiction in the version of the
prosecutrix and her mother. The prosecutrix in her cross
examination has stated that Dr. Prabir Bhagat - PW4 was in
his chamber in the evening when the appellant along with
Purnendu Babu- PW3 went to the Nursing Home whereas the
H mother of the prosecutrix in her testimony has stated that the
RAJESH PATEL v. STATE OF JHARKHAND
417
[V. GOPALA GOWDA, J.]
incident could not be reported to Dr.Prabir Bhagat on the date
A
of the occurrence since the Doctor was in TAT A. According to
the appellant, the courts below have ignored the contradiction
in the version of the prosecutrix. On one hand she says that she
never met the appellant till 21.2.93, on the other hand she has
stated that on the evening of the alleged occurrence, she met
B
the appellant at the dispensary of Dr.Prabir Bhagat. It was
further contended by the appellant regarding the prosecution
explanation that she could not raise alarm when the house was
locked and offence was being committed on her as she was
threatened by the appellant with a knife is improbable to believe c
her statement. This is because she could have raised an alarm
when the appellant allegedly locked the prosecutrix inside the
house for half an hour after the appellant committing offence of
rape on her. For all the abovementioned grounds, the
appellant's counsel contends that the conviction and sentence
D
imposed upon the appellant cannot be allowed to sustain.
5. Alternatively, the learned counsel contends that if, the
physical relationship between the appellant and the prosecution
is established, it was a case of consensual sex. Both of them
were majors to enter into such alliance and they were
E
classmates and familiar with each other as well as on visiting
terms prior to the alleged occurrence of offence. Therefore, the
appellant has not committed offence as alleged. On the issue
of sentencing, the learned counsel has relied upon the decision
of this Court in the case of Ram Kumar v. State of Haryana1,
F
as the appellant in the present case had already undergone the
imprisonment of more than 1 year and 8 months and more than
20 years have elapsed from the date of commission of the
offence and therefore the appeal may be allowed by passing
appropriate order. The prosecutrix and the appellant are both
G
married and settled in life and further the appellant is of a young
age. Therefore, this Court may exercise its power by recording
special and adequate reasons as provided under proviso to
Section 376, IPC and the sentence imposed may be reduced
1.
(2ooei 9 sec 589.
H
418
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A to the period already undergone in judicial custody by the
appellant and treat the same as imprisonment and relief may
be granted to him to this extent as was observed in Ram
Kumar case (Supra}, if the case urged on behalf of the appellant
is not acceptable.
B
6. On the other hand, the prosecution sought to justify the
concurrent findings of fact recorded by the High Court and the
Trial Court on the charge against the accused. The learned
counsel for prosecution would contend that the Courts below,
C while accepting the testimony of the prosecutrix and her mother,
have rightly convicted and sentenced the accused to undergo
imprisonment for seven years and the same need not be
interfered with by this Court in this appeal in exercise of its
jurisdiction. Further, it is contended by the learned counsel that
the judgment referred to supra, by the appellant's counsel is
D inapplicable to the facts situation of the present case and
therefore, discretionary power of this court for reduction of the
sentence need not be exercised and prayed for dismissal of
this appeal.
E
7. With reference to the aforesaid rival legal contentions
urged on behalf of the parties, we have carefully examined the
case to find out as to whether the impugned judgment warrants
interference of this Court on the ground that the concurrent
finding of fact by the High Court on the charge leveled against
F the appellant under Section 376, IPC, and the finding recorded
on this charge against the appellant on the basis of the
evidence on record is erroneous in law and if so, whether it
requires interference of this Court in exercise of its jurisdiction.
The said points are answered in favour of the appellant by
G assigning the following reasons:
8. The prosecution case is that the appellant has
committed the offence of rape on the prosecutrix on 14.2.1993.
She is the solitary witness to prove the charge. The same is
sought to be corroborated by her mother PW2 who has
H supported the prosecution case on the basis of narration of the
RAJESH PATEL v. STATE OF JHARKHAND
419
[V. GOPALA GOWDA, J.]
alleged offence by the prosecutrix to her. It is an undisputed fact
A
that both the appellant and the prosecutrix are class-mates and
had good acquaintance with each other as they were
exchanging books. The case of the prosecution is that she had
given her book to the appellant. She asked him to return the
same and he asked her to go to his house on 14.2.93 to take
B
back the book. Accordingly, she went to the house of the
appellant. When she entered the house he locked the door of
the house from inside. At that time she has not raised an alarm,
except stating that she insisted not to lock the door of the house
as there were no other inmates in the house at that point of time. c
The version of the prosecutrix is that she could not raise alarm
as the appellant has threatened her with knife. Further case of
the prosecution is that he had then committed offence of rape
on her. Further she has stated that while the appellant was
committing rape on her she got pain in her private part at that
0
point of time also she wanted to raise alarm, but he has shown
the knife to her not to raise alarm. Thus, the prosecution story
as narrated by the prosecutrix is most improbable and unnatural.
This contention of the appellant is further supported by the
contention urged on his behalf that after the offence was
E
committed, the appellant locked her in the house and went
away from the house. After about half an hour Mr.Purnendu
Babu -PW3, who is a common friend of both the appellant and
the prosecutrix came there and unlocked the room till then she
did not raise alarm drawing the attention of the neighbours. The
aforesaid circumstance would clearly go to show to come to
F
the conclusion that the case of the prosecution is not natural
and probable. Neither the prosecutrix nor the PW3 has informed
the police with regard to the alleged offence said to have
committed by the appellant after the prosecutrix was unlocked
from the house. The reason given by the prosecution is that G
PW3 was making sincere efforts to bring about the settlement
of marriage between the appellant and the prosecutrix. The
same did not materialize and, therefore, the complaint was
lodged with the jurisdictional police on 25.2.93. The above said
version of PW1 regarding settlement between her and the
H
420
SUPREME COURT REPORTS
[2013) 2 S.C.R.
A appellant is not proved as PW3 has stated in his evidence that
he does not know anything regarding the alleged offence.
9. Further, there is an inordinate delay of nearly 11 days
in lodging the FIR with the jurisdictional police. The explanation
8 given by the prosecutrix in not lodging the complaint within the
reasonable period after the alleged offence committed by the
appellant is that she went to her house and narrated the offence
committed by the appellant to her mother and on assurance of
Purnendu Babu - PW3, the mother remained silent for two to
four days on the assurance that he will take action in the matter.
C Further, the explanation given by the prosecutrix regarding the
delay is that at the time of commission of offence the appellant
had threatened her that in case she lodges any complaint
against him, she would be killed. The said explanation is once
again not a tenable explanation. Further, the reason assigned
D by the High Court regarding not lodging the complaint
immediately or within a reasonable period, it has observed that
in case of rape, the victim girl hardly dares to go to the police
station and make the matter open to all out of fear of stigma
which will be attached with the girls who are ravished. Also, the
E reason assigned by the trial court which justifies the explanation
offered by the prosecution regarding the delay in lodging the
complaint against the appellant has been erroneously accepted
by the High Court in the impugned judgment. In addition to that,
further observation made by the High Court regarding the delay
F is that the prosecutrix as well as her mother tried to get justice
by interference of PW3, who is a common friend of both of them
and PW4, the Doctor with whom the prosecutrix was working
as a Nurse. When the same did not materialize, after lapse of
11 days, FIR was lodged with the jurisdictional police for the
G offence said to have been committed by the appellant. Further,
the High Court has also proceeded to record the reason that
prosecutrix had every opportunity to give different date of
occurrence instead of 14.2.93 but she did not do it which reason
is not tenable in law. Further, the High Court accepted the
H observation made by the learned trial Judge wherein the
RAJESH PATEL v. STATE OF JHARKHAND
421
[V. GOPALA GOWDA, J.]
explanation given by the prosecutrix in her evidence about
A
being terrorized to be killed by the appellant in case of reporting
the matter to the police, is wholly untenable in law. The same
is not only unnatural but also improbable. Therefore, the
inordinate delay of 11 days in lodging the FIR against the
appellant is fatal to the prosecution case. This vital aspect
B
regarding inordinate delay in lodging the FIR not only makes
the prosecution case improbable to accept but the reasons and
observations made by the trial court as well as the High Court
in the impugned judgments are wholly untenable in law and the
same cannot be accepted. Therefore, the findings and c
observations made by the courts below in accepting delay in
lodging the FIR by assigning unsatisfactory reasons cannot be
accepted by this Court as the findings and reasons are
erroneous in law.
10. Further in the case in hand, PW3, who is a common
D
friend of the appellant and the prosecutrix, according to the
prosecution case, he has categorically stated that he does not
know anything about the case for which he had received the
notice from the court to depose in the case. PW4 has stated
in his evidence that the prosecutrix was getting nursing training
E
privately in his chamber for the last three years as on the date
of his examination, namely, on 16.11.95. He has stated in his
examination-in-chief that on 14.2.93 when he opened his
chamber the prosecutrix came to his chamber and further stated
that her mother did not tell him anything. He has been treated
F
as hostile by the prosecution, he was cross-examined by the
prosecutor, in his cross-examination he has categorically stated
that he has told the police that he does not know anything about
the incident. He has further stated that neither the prosecutrix
nor her mother told him about the incident and further stated
G
that he does not know anything about the case.
11. Further, neither the Doctor nor the 1.0. has been
examined before the trial court to prove the prosecution case.
The appellant was right in bringing to the notice of the trial court
H
422
SUPREME COURT REPORTS
[2013) 2 S.C.R.
A as well as the High Court that the non-examination of the
aforesaid two important witnesses in the case has prejudiced
the case of the appellant for the reason that if the doctor would
have been examined he could have elicited evidence about any
injury sustained by the prosecutrix on her private part or any
B other part of her body and also the nature of hymen layer etc.
so as to corroborate the story of the prosecution that the
prosecutrix suffered unbearable pain while the appellant
committed rape on her. Non-examination of the doctor who has
examined her after 12 days of the occurrence has not
c prejudiced the case of the defence for the reason that the
prosecutrix was examined after 12 days of the offence alleged
to have committed by the appellant because by that time the
sign of rape must have disappeared. Even if it was presumed
that the hymen of the victim was found ruptured and no injury
0 was found on her private part or any other part of her body,
finding of such rupture of hymen may be for several reasons in
the present age when the prosecutrix was a working girl and
that she was not leading an idle life inside the four walls of her
home. The said reasoning assigned by the High Court is totally
erroneous in law.
E
12. In view of the above statement of evidence of PW3 and
PW4 whose evidence is important for the prosecution to prove
the chain of events as per its case, the statement of evidence
of the aforesaid witnesses has seriously affected the
F prosecution case. Therefore, the courts below could not have,
at any stretch of imagination, on the basis of the evidence on
record held that the appellant is guilty of committing the offence
under Section 376, IPC. Further, according to the prosecutrix,
PW3 who is alleged to have rescued her from the place of
G occurrence of offence, has clearly stated in his evidence that
he does not know anything about the incident in his statement
thereby he does not support the version of prosecut[on. The
High Court has erroneously accepted the finding of the trial
court that the appellant has not been prejudiced for nonH examination of the doctor for the reason that she was working
RAJESH PATEL v. STATE OF JHARKHAND
423
[V. GOPALA GOWDA, J.]
as a Nurse in the private hospital of PW4 and being a nurse
A
she knew that the information on commission of rape is grave
in nature and she would not have hesitated in giving the
information to the police if the occurrence was true. Further, the
finding of the courts below that non-examination of the I. 0. by
the prosecution who has conducted the investigation in this case
B
has not caused prejudice to the case of the appellant, since
the prosecution witnesses were unfavorable to the prosecution
who were either examined or declared hostile by the
prosecution, which reasoning is wholly untenable in law.
Therefore, the finding and reasons recorded by both the trial c
court as well as the High Court regarding non-examination of
the above said two witnesses in the case has not prejudiced
the case of the appellant is totally an erroneous approach of
the courts below. For this reason also, we have to hold that the
findings and reasons recorded in the impugned judgment that
0
the trial court was justified in holding that the prosecution has
proved the charge against the appellant and that he has
committed the offence on the prosecutrix, is totally erroneous
and the same is wholly unsustainable in law.
13. The finding with regard to the sentence of the appellant
E
recorded by the trial court which is accepted by the High Court
on the basis of the solitary testimony of prosecutrix which is
supported by the evidence of her mother PW2 is once again
an erroneous approach on the part of the High Court. The
offence of rape alleged to have committed by the appellant is
F
established without any evidence as the prosecution failed to
prove the chain of events as stated by the prosecutrix. Since
the evidence of PW3 & PW4 did not support the prosecution
case, but on the other hand, their evidence has seriously
affected the story of prosecution. Therefore, the courts below
G
could not have found the appellant as guilty of the charge and
convicted and sentenced him for the offence of rape.
14. Further, one more strong circumstance which has
weighed in our mind is that they had good acquaintance with
each other as they were class-mates and they were in terms
H
424
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A of meeting with each other. The defence counsel had
alternatively argued that the appellant had sex with her consent.
The High Court proceeded not to accept the said argument by
giving reasons that the appellant failed to explain as to under
what circumstance he had sex with the consent of the
B prosecutrix when she was confined in his house. The contention
urged on behalf the appellant that it was consensual sex with
the prosecutrix is to be believed for the reason that she herself
has gone to the house of the appellant though her version is
that she went there at the request of the appellant to take back
C her book which she had given to him. This is a strong
circumstance to arrive at the conclusion that the defence case
of the appellant is a consensual sex. Further; the prosecution
case is that after the offence was committed by the appellant
he had locked the room from outside and left. After half an hour
0 Pumendu Babu- PW3 arrived and unlocked the room. This story
is improbable to believe and the prosecutrix has not lodged the
complaint either immediately or within reasonable period from
the date of occurrence. The complaint was undisputably lodged
after lapse of 11 days by the prosecutrix. In this regard, it is
pertinent to mention the judgment of this Court in Raju v. State
E of Madhya Pradesh2, the relevant paragraph of which is
extracted hereunder for better appreciation in support of our
conclusion:
F
G
"12. Reference has been made in Gurmit Singh case to
the amendments in 1983 to Sections 375 and 376 of the
Penal Code making the penal provisions relating to rape
more stringent, and also to Section 114-A of the Evidence
Act with respect to a presumption to be raised with regard
to allegations of consensual sex in a case of alleged rape.
It is however significant that Sections 113-A and 113-8 too
were inserted in the Evidence Act by the same amendment
by which certain presumptions in cases of abetment of
suicide and dowry death have been raised against the
accused. These two sections, thus, raise a clear
H 2.
(2oos) s sec 133.
RAJESH PATEL v. STATE OF JHARKHAND
425
[V. GOPALA GOWDA, J.]
presumption in favour of the prosecution but no similar
A
presumption with respect to rape is visualised as the
presumption under Section 114-A is extremely restricted
in its applicability. This clearly shows that insofar as
allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of an injured witness
B
whose presence at the spot is probable but it can never
be presumed that her statement should, without exception,
be taken as the gospel truth. Additionally, her statement
can, at best, be adjudged on the principle that ordinarily
no injured witness would tell a lie or implicate a person c
falsely. We believe that it is under these principles that this
case, and others such as this one, need to be examined."
15. For the aforesaid reasons the prosecution case is not
natural, consistent and probable to believe to sustain the
conviction and sentence of the appellant for the alleged offence
D
said to have committed by him.
/
16. The trial court as well as the High Court should have
appreciated the evidence on record with regard to delay and
not giving proper explanation regarding delay of 11 days in filing
FIR by the prosecutrix and non-examination of complainant
E
witnesses, viz. the Doctor and the 1.0. which has not only caused
prejudice to the case of the appellant but also the case of
prosecution has created reasonable doubt in the mind of this
Court. Therefore, the benefit of doubt must enure to the
appellant. As we have stated above the testimony of the
F
prosecutrix is most unnatural and improbable to believe and
therefore it does not inspire confidence for acceptance of the
same for sustaining the conviction and sentence. Therefore, we
are of the view that the impugned judgment requires to be
·interfered w"1th by this Court in exercise of "its jurisdiction.
G
Accordingly, we allow the appeal and set aside the impugned
judgment.
17. If the appellant has executed the bail bonds, the same
may be discharged.
R.P.
Appeal allowed.
H
A
B
(2013] 2 S.C.R. 426
NAGENDRAPPA NATIKAR
v.
NEELAMMA
(Special Leave Petition (Civil) No. 11800 of 2013)
MARCH 15, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956:
c
s.18 - Suit claiming maintenance by wife - Held: Is
maintainable inspite the compromise reached between the
parties, under 0. 23, r. 3 CPC and an order u/s 125 CrPC
based thereon granting permanent alimony - Code of
Criminal Procedure, 1973 - s.125 - Code of Civil Procedure,
0
1908 - 0. 23, r.23 - Contract Act, 1872 - s.25.
In the instant petition filed by the husband, the
question for consideration before the Court was: whether
a compromise entered into by husband and wife under
0. 23, r. 3 CPC, agreeing for a consolidated amount
E towards permanent alimony, thereby giving up any future
claim for maintenance, accepted by the court in a
proceeding uls 125 CrPC, would preclude the wife from
claiming maintenance in a suit filed uls 18 of the Hindu
Adoption and Maintenance Act, 1956.
F
Dismissing the petition, the Court
HELD: 1.1 Any order passed u/s 125 Cr.P.C. by
compromise or otherwise cannot foreclose the remedy
available to a wife uls 18(2) of the Hindu Adoptions and
G Maintenance Act, 1956. Section 125 Cr.P.C. is a piece of
social legislation which provides for a summary and
speedy relief by way of maintenance to a wife who is
unable to maintain herself and her children. Section 125
is not intended to provide for a full and final
H
426
NAGENDRAPPA NATIKAR v. NEELAMMA
427
determination of the status and personal rights of parties,
A
which is in the nature of a civil proceeding; and the order
made u/s 125 Cr.P.C. is tentative and is subject to final
determination of the rights in a civil court. [para 10-11)
[431-B-D-E]
1.2 Section 25 of the Contract Act provides that any
8
agreement which is opposed to public policy is not
enforceable in a court of law and such an agreement is
void, since the object is unlawful. [para 11) [431-D-E]
1.3 The Family Court and the High Court have rightly c
held that the suit u/s 18 of the Hindu Adoption and
Maintenance Act, 1956 is perfectly maintainable, in spite
of the compromise reached between the parties under 0.
23. r. 3 C.P.C. [para 9) [431-A-B]
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
D
11800 of 2013.
From the Judgment & Order dated 28.03.2011 of the High
Court of Karnataka, Circuit Bench at Gulbarga in MFA No.
31979 of 2010.
Raja Venkatappa Naik, Raja Raghavendra Naik, S.K.
Tandon, R.K. Gupta, Rameshwar Prasad Goyal for the
Petitioner.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. Delay condoned.
2. The question that is raised for consideration in this case
E
F
is whether a compromise entered into by husband and wife
under Order XX.Ill Rule 3 of the Code of Civil Procedure (CPC),
G
agreeing for a consolidated amount towards permanent
alimony, thereby giving up any future claim for maintenance,
accepted by the Court in a proceeding under Section 125 of
the Code of Criminal Procedure (CrPC), would preclude the
wife from claiming maintenance in a suit filed under Section 18
H
428
SUPREME COURT REPORTS
(2013] 2 S.C.R.
A of the Hindu Adoption and Maintenance Act, 1956 (for short
"the Act').
3. The marriage between the petitioner (husband) and
respondent (wife) took place on 24.5.1987. Alleging that the
B petitioner is not maintaining his wife, respondent filed an
application under Section 125 CrPC for grant of maintenance
before the 1st Additional JMFC at Gulbarga, being Misc. Case
No. 234of1992. While the matter was pending, an application
was preferred by the parties under Order XXlll Rule 3 CPC on
C 3.9.1994 stating that the parties had arrived at a compromise,
by which the respondent had agreed to receive an amount of
Rs.8,000/- towards permanent alimony and that she would not
make any claim for maintenance in future or enhancement of
maintenance. Consent letter dated 30.3.1990, which is in
Kannada, the English translation of the same reads as follow:
D
F
G
H
"Consent letter:
I, Neelamma W/o Nagendra Natikar, Age 23 years, ·
R/o Old Shahabad, do hereby execute this consent letter
in favour of my husband Nagendra Natikar with free will
and consent without coercion and misrepresentation. After
my marriage with Nagendra Natikar, I could not lead
marital life happy with my husband due to my ill health as
prior to my marriage I was suffering from backache,
Paralysis stroke to my left hand and left leg and was also
suffering from epilepsy (Fits disease) and therefore I have
myself decided to withdraw from marital life. I have given
my consent for mutual divorce. I have no objection if my
husband would contract second marriage with someone.
Prior to my marriage I was suffering from chronic disease.
I had asked my father not to celebrate her marriage with
anyone. My father forcibly got marriage with Nagendrappa
Natikar. Henceforth I will not make any further claims and
also forfeit my rights in future and I will not claim
compensation or maintenance or alimony. I am satisfied
NAGENDRAPPA NATIKAR v. NEELAMMA
429
[K.S. RADHAKRISHNAN, J.]
with the payment of Rs.8000/- and I will not make any further
A
claims against my husband.
I have executed this consent letter in favoaur of my
husband without any force of anybody and free from
misrepresentation or coercion. My father.-mother or nay
8
other family members have no objection for executing this
consent letter.
Signature of Executant
Neelamma
(Signed in Kannada)) c
Signature of witnesses:
1. Tippanna (signed in Kannada)
2. Devindrappa (signed in Kannada)
D
3. Syed Zabiullah Sahab (signed scribe)"
The Court, on the same day, passed the following order:
"Parties both present. Both parties and advocates files
E
compromise petition. The contents of the compromise
petition is read over and explained to them. They admit
the execution of the same before court. Respondent paid
Rs.8000/- (eight thousand) before court towards full
satisfaction of the maintenance as per compromise
recorded. In view of the compromise, petition dismissed."
F
4. Respondent wife then filed a Misc. Application no. 34
of 2003 under Section 127 Cr.P.C. before the Family Court,
Gulbarga for cancellation of the earlier order and also for
awarding future maintenance, which was resisted by the
G
petitioner stating that the parties had already reached a
compromise with regard to the claim for maintenance on
3.9.1994 and hence the application for cancellation of the earlier
order is not maintainable. The Court accepted the plea of the
husband and took the view that since such an order was still in
H
430
SUPREME COURT REPORTS
[2013] 2 S.C.R.
A force and not set aside by a competent Court, it would not be
possible to entertain an application under Section 127 Cr.P.C.
The application was, therefore, dismissed on 31.7.2006.
5. We notice, while the application under Section 127
8 Cr.P.C. was pending, respondent wife filed O.S. No. 10 of
2005 before the Family Court, Gulbarga under Section 18 of
the Act claiming maintenance at the rate of Rs.2,000/- per
month. The claim was resisted by the petitioner husband
contending that, in view of the compromise reached between
C the parties in Misc. Case No. 234 of 1992 filed under Section
125 CrPC, respondent could not claim any monthly
maintenance and hence the suit filed under Section 18 of the
Act was not maintainable. The question of maintainability was
raised as a preliminary issue. The Family Court held by its
order dated 15.9.2009 that the compromise entered into
D between the parties in a proceeding under Section 125 Cr.P.C.
would not be bar in entertaining a suit under Section 18 of the
Act.
6. The suit was then finally heard on 30.9.2010 and the
E Family Court decreed the suit holding that the respondent is
entitled to monthly maintenance of Rs.2,000/- per month from
the defendant husband from the date of the filing of the suit.
7. Aggrieved by the said order, petitioner took up the
F matter before the High Court by filing an appeal, being M.F.A.
No. 31979 of 2010, which was dismissed by the High Court
by its judgment dated 28.3.2011, against which this SLP has
been preferred.
8. Shri Raja Venkatappa Naik, learned counsel appearing
G for the petitioner, husband, submitted that suit filed under
Section 18 of the Act is not maintainable, in view of the order
dated 3.9.1994, accepting the consent terms and ordering a
.consolidated amount towards maintenance under Section 125
Cr.P.C.
H
NAGENDRAPPA NATIKAR v. NEELAMMA
431
[K.S. RADHAKRISHNAN, J.]
9. We are in complete agreement with the reasoning of A
the Family Court and confirmed by the High Court that the suit
under Section 18 of the Act is perfectly maintainable, in spite
of the compromise reached between the parties under Order
XXlll Rule 3 C.P.C. and accepted by the Court in its order dated
3.9.1994.
B
10. Section 125 Cr.P.C. is a piece of social legislation
which provides for a summary and speedy relief by way of
maintenance to a wife who is unable to maintain herself and
her children.