# SUPREME COURT REPORTS [2018] 14 S.C.R. STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY AND ORS

- **Citation:** [2018] 14 S.C.R. 78
- **Court:** Supreme Court of India
- **Decided:** 2018-10-30
- **Case number:** Criminal Appeal No. 2299 of 2009
- **Bench:** R. Banumathi, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-2018-14-s-c-r-state-govt-of-nct-of-delhi-v-pankaj-32724
- **Pages:** 25

## Headnote

Penal Code, 1860 - s.376(2)(g) - Case of the prosecution
that accused-respondents, living in the neighbourhood of the
prosecutrix entered her jhuggi on 28.07.1997 at about 9.00 pm
and raped her - Trial court convicted the respondents - High Court
set aside the conviction and issued directions to lodge complaint
against the police officials for fabricating false case against the
respondents - Plea of respondents that Prosecutrix was of bad
character and indulged in prostitution and since they lodged
complaint against her, therefore, they were falsely implicated - Held:
Trial Court which had the opportunity of observing the prosecutrix,
found the testimony of the prosecutrix reliable being corroborated
by her mother's evidence, medical evidence, FSL report and other
circumstances viz. absence of motive for any false implication etc.
- Reasoning of the High Court that the prosecutrix along with some
ladies was arrested in connection with an FIR No.558/97 (registered
regarding a quarrel at 07.30 pm on 28.07.1997 involving sex
workers including the prosecutrix) and that the ladies must have
remained with the custody of police till 09.20pm, proceeds on
presumptive footing and surmises - Evidence of DWs 1 and 2 clearly
show that the prosecutrix was let out by the police at or about 08.20
pm on 28.07.1997 - High Court failed to appreciate their testimonies
- Mere fact that FIR No.558/97 was registered at 09.20pm does not
indicate that the prosecutrix and other quarrelling ladies were in
the police custody till 09.30 pm on 28.07.1997 (with respect to the
offence in the said FIR) - Placing of heavy reliance by the High
Court upon the contents in FIR No.558/97 was not correct - High
Court erred in taking into consideration the materials produced
before the appellate court viz., the alleged complaints made against
the prosecutrix and other women alleging that they were engaged
in prostitution - Even assuming that the prosecutrix was of easy
[2018] 14 S.C.R. 78
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virtue, she has right to refuse to submit herself to sexual intercourse
to anyone - Further, without hearing the police officials and based
on the materials produced as additional evidence, High Court was
not right in issuing direction to lodge complaint against the police
officials - Judgment of the High Court set aside - Conviction of the
respondents affirmed.
Code of Criminal Procedure,1973 - s.391 - Power under -
Scope of - Discussed.
Code of Criminal Procedure,1973- s.340- Pre-conditions for
initiating proceedings under - Discussed.
Evidence - Rape - Sole testimony of the prosecutrix -
Appreciation of - Discussed.
Disposing of the appeals, the Court
HELD : 1.1 Evidence of the prosecutrix is corroborated
by the MLC. The evidence of the prosecutrix is also corroborated
by FSL Report which shows presence of human semen on the
petticoat of the prosecutrix. [Paras 13, 15][87-F; 88-C]
1.2 The prosecutrix had no motive to falsely implicate the
accused. In their statement under Section 313 Cr.P.C., the
respondents/accused have stated that the prosecutrix was of bad
character and she was indulging in prostitution regarding which
they have lodged complaint against her and they have been falsely
implicated in the case. As pointed out by the trial court, nothing
was brought on record by the accused to show that they have
lodged complaint against the prosecutrix. DW-1, the President
of the jhuggi area stated that about 7-8 women including the
prosecutrix have been indulging in prostitution regarding which
he has lodged the complaint. There is nothing on record to
suggest that the accused were in any way involved in making
such complaints against the prosecutrix and other women. The
version that they lodged complaint against the prosecutrix and
therefore, they have been falsely implicated in the case, is not
substantiated by any record. [Para 20][90-C-E]
1.3 The power conferred under Section 391 Cr.P.C. is to
be exercised with great care and caution. In dealing w

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 SUPREME COURT REPORTS [2018] 14 S.C.R.
STATE (GOVT. OF NCT OF DELHI)
v.
PANKAJ CHAUDHARY AND ORS.
(Ciminal Appeal No. 2299 of 2009)
OCTOBER 30, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Penal Code, 1860 - s.376(2)(g) - Case of the prosecution
that accused-respondents, living in the neighbourhood of the
prosecutrix entered her jhuggi on 28.07.1997 at about 9.00 pm
and raped her - Trial court convicted the respondents - High Court
set aside the conviction and issued directions to lodge complaint
against the police officials for fabricating false case against the
respondents - Plea of respondents that Prosecutrix was of bad
character and indulged in prostitution and since they lodged
complaint against her, therefore, they were falsely implicated - Held:
Trial Court which had the opportunity of observing the prosecutrix,
found the testimony of the prosecutrix reliable being corroborated
by her mother's evidence, medical evidence, FSL report and other
circumstances viz. absence of motive for any false implication etc.
- Reasoning of the High Court that the prosecutrix along with some
ladies was arrested in connection with an FIR No.558/97 (registered
regarding a quarrel at 07.30 pm on 28.07.1997 involving sex
workers including the prosecutrix) and that the ladies must have
remained with the custody of police till 09.20pm, proceeds on
presumptive footing and surmises - Evidence of DWs 1 and 2 clearly
show that the prosecutrix was let out by the police at or about 08.20
pm on 28.07.1997 - High Court failed to appreciate their testimonies
- Mere fact that FIR No.558/97 was registered at 09.20pm does not
indicate that the prosecutrix and other quarrelling ladies were in
the police custody till 09.30 pm on 28.07.1997 (with respect to the
offence in the said FIR) - Placing of heavy reliance by the High
Court upon the contents in FIR No.558/97 was not correct - High
Court erred in taking into consideration the materials produced
before the appellate court viz., the alleged complaints made against
the prosecutrix and other women alleging that they were engaged
in prostitution - Even assuming that the prosecutrix was of easy
[2018] 14 S.C.R. 78
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virtue, she has right to refuse to submit herself to sexual intercourse
to anyone - Further, without hearing the police officials and based
on the materials produced as additional evidence, High Court was
not right in issuing direction to lodge complaint against the police
officials - Judgment of the High Court set aside - Conviction of the
respondents affirmed.
Code of Criminal Procedure,1973 - s.391 - Power under -
Scope of - Discussed.
Code of Criminal Procedure,1973- s.340- Pre-conditions for
initiating proceedings under - Discussed.
Evidence - Rape - Sole testimony of the prosecutrix -
Appreciation of - Discussed.
Disposing of the appeals, the Court
HELD : 1.1 Evidence of the prosecutrix is corroborated
by the MLC. The evidence of the prosecutrix is also corroborated
by FSL Report which shows presence of human semen on the
petticoat of the prosecutrix. [Paras 13, 15][87-F; 88-C]
1.2 The prosecutrix had no motive to falsely implicate the
accused. In their statement under Section 313 Cr.P.C., the
respondents/accused have stated that the prosecutrix was of bad
character and she was indulging in prostitution regarding which
they have lodged complaint against her and they have been falsely
implicated in the case. As pointed out by the trial court, nothing
was brought on record by the accused to show that they have
lodged complaint against the prosecutrix. DW-1, the President
of the jhuggi area stated that about 7-8 women including the
prosecutrix have been indulging in prostitution regarding which
he has lodged the complaint. There is nothing on record to
suggest that the accused were in any way involved in making
such complaints against the prosecutrix and other women. The
version that they lodged complaint against the prosecutrix and
therefore, they have been falsely implicated in the case, is not
substantiated by any record. [Para 20][90-C-E]
1.3 The power conferred under Section 391 Cr.P.C. is to
be exercised with great care and caution. In dealing with any
appeal, the appellate court can refer to the additional evidence
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
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only if the same has been recorded as provided under Section
391 Cr.P.C. Any material produced before the appellate court to
fill-up the gaps by either side cannot be considered by the
appellate court; more so, to reverse the judgment of the trial
court. The High Court took into consideration the materials
produced by the Bar, namely, complaints allegedly made against
the prosecutrix and other women including the one allegedly given
on 21.07.1997 just one week prior to the incident. The High Court
was not right in taking into consideration those complaints
produced at the time of arguments in the appeal. Even if the
allegations of the accused that the prosecutrix is of immoral
character are taken to be correct, the same does not give any
right to the accused persons to commit rape on her against her
consent. Even a woman of easy virtue is entitled to privacy and
it is not open to any person to violate her and she is equally
entitled to protection of law. Further, the evidence of such a
woman cannot be thrown overboard merely because she is a
woman of easy virtue. [Paras 21, 22][90-G-H; 91-A-C]
1.4 Even in cases where there is some material to show
that the victim was habituated to sexual intercourse, no inference
like the victim being a woman of 'loose moral character" is
permissible to be drawn from that circumstance alone. A woman
of easy virtue also could not be raped by a person for that reason.
While so, the High Court erred in placing reliance upon the
complaints allegedly made against the prosecutrix to doubt her
version and to hold that a false case has been foisted against the
accused. Conviction can be sustained on the sole testimony of
the prosecutrix if it inspires confidence. There is no rule of law
or practice that the evidence of the prosecutrix cannot be relied
upon without corroboration and as such it has been laid down
that corroboration is not a sine qua non for conviction in a rape
case. If the evidence of the victim does not suffer from any basic
infirmity and the 'probabilities factor' does not render it unworthy
of credence, as a general rule, there is no reason to insist on
corroboration except from medical evidence, where, having regard
to the circumstances of the case, medical evidence can be
expected to be forthcoming. [Paras 23, 24][91-D, F-H; 92-A-B]
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1.5 The trial court which had the opportunity of seeing and
observing the prosecutrix, found the testimony of the prosecutrix
reliable being corroborated by her mother's evidence, medical
evidence, FSL report and other circumstances viz. absence of
motive for any false implication etc. The High Court failed to
appreciate the testimonies of DWs 1 and 2 who categorically stated
that the prosecutrix had come back and was abusing neighbours.
The evidence of DWs 1 and 2 clearly shows that the prosecutrix
was let out by the police at or about 08.20 PM on 28.07.1997.
Mere fact that FIR No.558/97 under Section 160 IPC
was registered at 09.20 PM does not indicate that the prosecutrix
and other quarrelling ladies were in the police custody till
09.30 PM on 28.07.1997 (with respect to the offence in
FIR No.558/97). [Paras 25, 29 and 30][92-B-C; 93-H; 94-A-B]
1.6 There were two sets of persons and two sets of officers
involved in FIR No.558/97 and FIR No.559/97. The aspect
regarding FIR No.558/97 was not put to the witnesses even before
the trial court. Everything was brought about in appeal as
additional evidence in exercise of the power of the appellate court
under Section 391 Cr. P.C. Placing of heavy reliance by the High
Court upon the contents in FIR No.558/97 was not a correct
approach. Unfortunately, the High Court was swayed by the
Departmental Enquiry Report prepared by Joint Commissioner
of Police. The High Court was not right in placing heavy reliance
upon the report of the Joint Commissioner and the report of
Deputy Commissioner who were not examined before the court.
[Paras 31, 32 and 33][94-C-D, H]
1.7 Based upon the report of Joint Commissioner of Police
and the report of the DCP, the High Court made disparaging
remarks against the police officials and directed prosecution
against the police under Sections 193 and 195 IPC. The police
officials were neither party nor summoned by the High Court
before making such disparaging remarks and giving directions
against them in the appeal against the conviction. Any disparaging
remarks and direction to initiate departmental action/prosecution
against the persons whose conduct comes into consideration
before the court would have serious impact on their official career.
Since the High Court had passed strictures against the police
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
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officials who were involved in the investigation in
FIR No.559/1997 without affording an opportunity of hearing to
them, the disparaging remarks are liable to be set aside.
[Paras 34, 36][95-A-B, D; 97-D]
1.8 The object of Section 340 Cr.P.C. is to ascertain whether
any offence affecting administration of justice has been committed
in relation to any document produced or evidence given in court
during the time when the document or evidence was in custodian
legis and whether it is also expedient in the interest of justice to
take such action as required under Section 340 Cr.P.C. Before
directing the prosecution to be initiated under Section 195 Cr.P.C.,
the court has to follow the procedure under Section 340 Cr.P.C.
and record a finding that "it is expedient in the interest of
justice........". Though wide discretion is given to court under
Section 340 Cr.P.C., the same has to be exercised with care and
caution. To initiate prosecution under Section 195 Cr.P.C too
readily that too against the police officials who were conducting
the investigation may not be a correct approach. There are two
preconditions for initiating proceedings under Section 340 Cr.
P.C.- (i) materials produced before the court must make out a
prima-facie case for a complaint for the purpose of inquiry into an
offence referred to in clause (b)(i) of sub-section (1) of
Section 195 Cr.P.C. and (ii) it is expedient in the interests of
justice that an inquiry should be made into the alleged offence.
[Paras 37-39][97-E-H; 98-F-G]
1.9 Prosecution for perjury be sanctioned by the courts only
in those cases where perjury appears to be deliberate and
prosecution ought to be ordered where it would be expedient in
the interest of justice to punish the delinquent and not merely
because there is some inaccuracy in the statement. The High
Court has not recorded a finding that "it is expedient in the interest
of justice to initiate an inquiry into the offences punishable under
Sections 193 and 195 IPC against the police officials and under
Section 211 IPC against the prosecutrix". Without affording an
opportunity of hearing to the police officials and based on the
materials produced before the appellate court, the High Court
was not right in issuing direction to the Registrar General to
lodge a complaint against the police officials and the said direction
is set aside. [Paras 41, 42][100-E-F; 101-C-D]
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Amarsang Nathaji as himself and as karta and manager
v. Hardik Harshadbhai Pateland Others (2017) 1 SCC
113 : [2016] 12 SCR 80 ; Chajoo Ram v. Radhey Shyam
and Another (1971) 1 SCC 774 : [1971] Suppl. SCR
172 - relied on.
State of Maharashtra and Another v. Madhurkar
Narayan Mardikar (1991) 1 SCC 57 ; State of Punjab
v. Gurmeet Singh and Others (1996) 2 SCC 384 : [1996]
1 SCR 532 ; Vishnu alias Undrya v. State of
Maharashtra (2006) 1 SCC 283 ; State v. N.K. The
accused (2000) 5 SCC 30 : [2000] 2 SCR 818 ;
S.K. Viswambaran v. E. Koyakunju and Others (1987)
2 SCC 109 ; Manish Dixit and Others v. State of
Rajasthan (2001) 1 SCC 596 : [2000] 4 Suppl. SCR 74 ;
Chintamani Malviya v. High Court of Madhya Pradesh
(2018) 6 SCC 151 - referred to.
Case Law Reference
(1991) 1 SCC 57
referred to
Para 22
[1996] 1 SCR 532
referred to
Para 23
(2006) 1 SCC 283
referred to
Para 24
[2000] 2 SCR 818
referred to
Para 24
(1987) 2 SCC 109
referred to
Para 35
[2000] 4 Suppl. SCR 74
referred to
Para 36
[2016] 12 SCR 80
relied on
Para 40
(2018) 6 SCC 151
referred to
Para 40
[1971] Suppl. SCR 172
relied on
Para 41
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2299 of 2009.
From the Judgment and Order dated 05.05.2009 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 384 of 2000.
With
Criminal Appeal No. 2298/2009
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
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Vikramjit Banerjee, ASG, Mukul Gupta, Sanjay R. Hegde,
Ms. Kiran Suri, Sr. Advs., Satya Mitra Garg, Sumit Kr. Mishra, Tushar
Gupta, Dipanshu Panwar, Ms. Manju Aggarwal, Sudhadhar Kumar,
Hrishikesh Baruah, Ms. Radhika Gupta, Siddhant K., P. K. Dey, Pranay
Ranjan, B. V. Balaram Das, Praveen Chaturvedi, Ms. Jyoti Chaturvedi,
Ms. Addya Mishra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. 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
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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 other evidence, the trial court
convicted accused/respondents under Section 376(2)(g) IPC and
sentenced each of them to undergo rigorous imprisonment for ten years.
Being aggrieved, the accused/respondents filed appeal before the High
Court. In the High Court, the accused/respondents filed petition under
Section 391 Cr.P.C. for taking additional evidence which was allowed
by 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
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
[R. BANUMATHI, J.]
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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.
7. 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 (PW7), 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. Being aggrieved by the remarks made against
them and also the direction to lodge a complaint to initiate prosecution
against them, SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and
Head Constable Sagar Chand (DW-5) have preferred Criminal Appeal
No.2298 of 2009.
8. The learned Additional Solicitor General Mr. Vikaramjit Banerjee
appearing on behalf of appellant Govt. of NCT of Delhi has submitted
that the High Court has failed to appreciate the evidence of PW-1Prosecutrix which is corroborated by the medical evidence and the High
Court erred in relying upon the events in FIR No.558/97 and erred in
acquitting the respondents/accused. The learned Additional Solicitor
General further submitted that the High Court erred in relying upon the
report of the Joint Commissioner (Ex.-DW6/A) and other materials
produced at the time of arguments and the High Court ought not to have
proceeded on presumption and conjectures and erred in not appreciating
the evidence and materials placed on record.
9. The learned senior counsel Mr. Mukul Gupta and Mr. Sanjay
R. Hegde appearing for the appellants-police have taken us through the
evidence and other materials and submitted that the police officials have
correctly investigated the case and without giving an opportunity of
hearing, the High Court was not right in passing disparaging remarks
against the police officials and issuing directions to lodge a complaint
against the appellants-police officials to initiate the prosecution under
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Sections 193 and 195 IPC which have very serious consequences and
impact on their official career.
10. Though the accused initially engaged a lawyer, in later hearings
of the appeal, they were not represented. Mr. Praveen Chatruvedi was
nominated as the counsel for the respondents through Supreme Court
Legal Services Committee who made meticulous submissions. Contention
of the respondents/accused is that PW-1-Prosecutrix was in custody of
police between 08.50 PM to 10.00 PM on 28.07.1997 in connection with
FIR No.558/97 under Section 160 IPC and therefore, the alleged offence
of gang rape (FIR No.559/97) could not have been committed by the
respondents/accused in the manner alleged. It is the contention of the
respondents/accused that the police and prosecutrix have conspired a
plot of false rape case implicating the respondents and the High Court
rightly acquitted the accused/respondents and directed to initiate action
against the police.
11. We have carefully considered the submissions of the
respondents/accused and also the appellant/police officials and perused
the impugned judgment and materials on record.
12. PW-1-Prosecutrix has spoken about the occurrence of rape
committed on her that accused/respondent No.2-Gunjesh Chaudhary
caught hold of her hands and that other three accused namely Pankaj
Chaudhary, Qasim and Jai Lal Yadav had torn her blouse and committed
rape on her and that she raised alarm and then her mother came there
and the accused persons ran away. Upon consideration of evidence of
the prosecutrix, the trial court held that there is no reason to disbelieve
the statement of prosecutrix where it is sufficiently corroborated by the
statement of Bashira Khatoon, mother of prosecutrix (PW-3) who saw
the accused leaving the jhuggi and identified two of them in the court.
13. Evidence of the prosecutrix is corroborated by the MLC
(Ex.-PW6/A). Dr. Monika who examined the prosecutrix noted in MLC
(Ex-PW6/A) that "the blouse of the prosecutrix was found to be torn
along the back of the left sleeve and bruises measuring 4 × 4 cm
were found on her both thighs".
14. Contention of the respondents is that when the prosecutrix
was forcibly held by the accused and gang raped, in all probability, the
prosecutrix must have sustained external injuries and absence of external
injuries raises serious doubts about the prosecution version. The
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
[R. BANUMATHI, J.]
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submission of the accused/respondents that the prosecutrix was not
injured, was belied by the presence of bruises measuring 4 × 4 cm on the
medial aspects of both the thighs. The blouse was torn along the back
of left sleeve and such injuries were possible by use of force. Further,
the version of the prosecutrix is corroborated by MLC(Ex.-PW6/A)
and that the injuries found could be possible by use of force. In any
event, absence of external injuries does not tantamount to consent nor
does it discredit the version of prosecutrix.
15. The evidence of the prosecutrix is also corroborated by FSL
Report (Ex.-PW7/G) which shows presence of human semen (Ex.-1)
on the petticoat of the prosecutrix. As per the FSL Report (Ex.-PW7/
G), blood was detected on Exhibits 3S1 (gauze cloth piece having brown
stains labelled 'Pankaj'); 3S2 (gauze cloth piece having brown stains
labelled 'Qasim'); and 3S3 (gauze cloth piece having brown stains labelled
'Jai Lal'). The result of the biological report reads as under :-
The presence of semen status of 'B' group on the petticoat of the
prosecutrix which matches with the blood 'B' group of accused Jai Lal
(3S3) corroborates the version of the prosecutrix. Of course, the Serology
Report on Exhibits 3S1 (gauze cloth piece having brown stains labelled
'Pankaj'); 3S2 (gauze cloth piece having brown stains labelled 'Qasim')
remained inconclusive; probably due to disintegration of the sample. Such
disintegration of the sample does not dilute the version of the prosecutrix.
16. The FSL Report (Ex.-PW7/G) was discarded by the High
Court primarily on the ground that in MLC (Ex.-PW6/A), it is stated that
"the clothes could not be sealed as patient does not have extra
clothes" which according to the High Court was inconsistent with the
statement of SI Jai Bhagwan (PW-7) that "Duty Constable of the
Exhibits
Species of
Origin
ABO Group
Remarks
3S1 (gauze cloth piece having brown stains
labelled 'Pankaj')

Inconclusive
3S2 (gauze cloth piece having brown stains
labelled 'Qasim')

Inconclusive
3S3 (gauze cloth piece having brown stains
labelled 'Jai Lal')

'B' Group
Semen
Status
(Ex.-1-petticoat
of
the
prosecutrix)

'B' Group
A
B
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hospital produced before me two sealed parcels containing petticoat
and slides which was sent to the FSL". It is pertinent to note that the
prosecutrix was examined by the doctor at 11.45 PM on 28.07.1997;
whereas SI Jai Bhagwan (PW-7) after getting statement from the doctor
as to the fit mental state of prosecutrix has recorded the statement of
the prosecutrix at 02.30 AM on 29.07.1997. In her evidence during
cross-examination, the prosecutrix has stated that the petticoat that she
was wearing at the time of incident was seized by the police. Having
regard to the evidence of the prosecutrix, we find no inconsistency
between MLC (Ex.-PW6/A) and the statement of SI Jai Bhagwan
(PW-7).
17. Drawing our attention to the evidence of prosecutrix who
submitted that the prosecutrix regained consciousness only at 10.00 AM
on 29.07.1997 and while so SI Jai Bhagwan could not have recorded her
statement at around 02.30 AM on 29.07.1997 as stated by him and this
again throws serious doubt about the prosecution case. The prosecutrix
(PW-1) was examined in the court on 05.11.1999 nearly two years after
the occurrence and she might not have been able to recollect the
happenings as it is. It is also pertinent to note that SI Jai Bhagwan (PW7) has enquired the Doctor and the Doctor has declared that prosecutrix
was fit to make the statement and only thereafter the statement of
prosecutrix (PW-1) was recorded (Ex.-PW1/A). In the light of the
evidence of SI Jai Bhagwan that the Doctor declared the prosecutrix fit
to make the statement, there is no merit in the contention of the accused
raising doubts about the recording of statement of the prosecutrix at
02.30 AM on 29.07.1997.
18. On the next day i.e., on 29-07-1997 all the accused/respondents
were arrested by SI Jai Bhagwan (PW-7) and they were medically
examined in the hospital between 11.36 AM to 11.38 AM and the doctor
opined that "on clinical examination, there is nothing to suggest that
the said accused persons are incapable of performing sexual
intercourse". The blood samples and the slide of smear of the accused
were also seized and the case property was deposited in the malkhana
from where it was sent to FSL. As pointed out earlier, the FSL Report
(Ex.-PW7/G) showed that the semen stains were found on the petticoat
of the prosecutrix (B group) which matched with the blood group of the
accused/respondent No.4-Jai Lal Yadav.
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19. It is also relevant to refer to the false explanation of the accused
in their statement under Section 313 Cr.P.C. Though the accused have
admitted about their medical examination, in their statement under Section
313 Cr.P.C. all the accused have given a false version regarding the
manner and time of arrest as after 04.00 PM on 29.07.1997. The statement
of the accused that they were arrested only after 04.00 PM on 29.07.1997
is not consistent with the materials placed on record that they were
medically examined between 11.36 AM to 11.38 AM on 29.07.1997.
The false explanation by the accused is yet another militating circumstance
against them.
20. Further, as pointed out by the trial court, the prosecutrix had
no motive to falsely implicate the accused. In their statement under
Section 313 Cr.P.C., the respondents/accused have stated that the
prosecutrix was of bad character and she was indulging in prostitution
regarding which they have lodged complaint against her and they have
been falsely implicated in the case. As pointed out by the trial court,
nothing was brought on record by the accused to show that they have
lodged complaint against the prosecutrix. Mahanand Jha (DW-1) stated
that he is the President of the jhuggi area. He further stated that about
7-8 women including the prosecutrix have been indulging in prostitution
regarding which he has lodged the complaint. There is nothing on record
to suggest that the accused were in any way involved in making such
complaints against the prosecutrix and other women. The version that
they lodged complaint against the prosecutrix and therefore, they have
been falsely implicated in the case, is not substantiated by any record.
21. The High Court observed that the trial court erred in saying that the
accused failed to prove the making of previous complaints against the
prosecutrix. While saying so, the High Court referred to certain complaints
made against the prosecutrix including the one allegedly given on
21.07.1997 which were produced by the Bar at the time of arguments.
The power conferred under Section 391 Cr.P.C. is to be exercised with
great care and caution. In dealing with any appeal, the appellate court
can refer to the additional evidence only if the same has been recorded
as provided under Section 391 Cr.P.C. Any material produced before
the appellate court to fill-up the gaps by either side cannot be considered
by the appellate court; more so, to reverse the judgment of the trial
court. As rightly contended by the learned Additional Solicitor General,
the High Court has taken into consideration the materials produced by
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the Bar, namely, complaints allegedly made against the prosecutrix and
other women including the one allegedly given on 21.07.1997 just one
week prior to the incident. The High Court was not right in taking into
consideration those complaints produced at the time of arguments in the
appeal.
22. As rightly held by the trial court that even if the allegations of
the accused that the prosecutrix is of immoral character are taken to be
correct, the same does not give any right to the accused persons to
commit rape on her against her consent. In State of Maharashtra and
Another v. Madhurkar Narayan Mardikar (1991) 1 SCC 57, it was
held that even a woman of easy virtue is entitled to privacy and it is not
open to any person to violate her and she is equally entitled to protection
of law. Further, the evidence of such a woman cannot be thrown
overboard merely because she is a woman of easy virtue.
23. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference like the victim
being a woman of 'loose moral character" is permissible to be drawn
from that circumstance alone. A woman of easy virtue also could not be
raped by a person for that reason. In State of Punjab v. Gurmeet Singh
and Others (1996) 2 SCC 384, it was held as under:-
"16. ......Even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she has a right to
refuse to submit herself to sexual intercourse to anyone and
everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone......"(Emphasis
supplied) [Underlining added].
While so, the High Court erred in placing reliance upon the
complaints allegedly made against the prosecutrix to doubt her version
and to hold that a false case has been foisted against the accused.
24. It is now well-settled principle of law that conviction can be
sustained on the sole testimony of the prosecutrix if it inspires confidence.
[Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 283]. It
is well-settled by a catena of decisions of this Court that there is no rule
of law or practice that the evidence of the prosecutrix cannot be relied
upon without corroboration and as such it has been laid down that
corroboration is not a sine qua non for conviction in a rape case. If the
evidence of the victim does not suffer from any basic infirmity and the
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY
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'probabilities factor' does not render it unworthy of credence, as a general
rule, there is no reason to insist on corroboration except from medical
evidence, where, having regard to the circumstances of the case, medical
evidence can be expected to be forthcoming. [State v. N.K. The accused
(2000) 5 SCC 30]
25. The trial court which had the opportunity of seeing and observing
the prosecutrix, found the testimony of the prosecutrix reliable being
corroborated by her mother's evidence, medical evidence, FSL report
and other circumstances viz. absence of motive for any false implication
etc. While so, the High Court ought not to have heavily interfered with
the verdict of conviction based on the alleged time gap in the registration
of two FIRs and other aspects of investigation in connection with FIR
No.558/97 to reverse the verdict of conviction.
26. The High Court reversed the verdict of conviction mainly on
the ground of difference of timing in the registration of FIR No.558/97
and other aspects of investigation. At about 08.05 PM, a telephonic
information was received vide DD No.67-B at Police Station Hauz Khas
regarding a quarrel at Shaheed Bhagat Singh Jhuggi. The specific case
of the defence is that the prosecutrix was in police custody in FIR No.558/
97 under Section 160 IPC till about 10.00 PM. As per the deposition of
SI Prem Chand (DW-3), he reached the spot with one lady constable
Ms. Sarla Toppo and Constable Sagar Chandra (DW-5) at around 08:18
PM and found the ladies including prosecutrix quarrelling at public place
in their jhuggis and immediately arrested the ladies and conducted
investigation and sent the ruqqa with a constable to register the FIR
under Section 160 IPC. On receipt of information, FIR No.558/97 at
Police Station Hauz Khas was registered at 09.20 PM on 28.07.1997.
SI Prem Chand (DW-3) stated about the arrest and search of four
women and then released them on bail bonds and he was on the spot up
to 08:50 PM.
27. The High Court relied on the statement of Head Constable
Ratan Lal (DW-4) that SI Prem Chand (DW-3) has made a telephonic
call at 08:52 PM to know the serial number of the case and because the
FIR was registered at 09:20 PM, the High Court came to the conclusion
that the women involved in the FIR No.558/97 could not have been
released before 09:20 PM because one of the bail bonds contain the said
FIR number and also held that it is highly unlikely for the police to have
completed all the steps referred to above in respect of each of the four
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women and released them by 08:52 PM and as per the site plan drawn
in FIR No.559/97, the distance between the road and jhuggi is such that
it was impossible for the prosecutrix to come back alone and be in her
jhuggi at 09.00 PM.
28. The occurrence of rape (FIR No.559/97) was at about
09.00 PM regarding which information was received by the same Police
Station Hauz Khas at about 09.30 PM. SI Jai Bhagwan (PW-7) along
with constable Khushi Ram (PW-4) reached the spot and learnt that the
prosecutrix was taken to hospital by PCR Van. Thereafter, SI Jai
Bhagwan (PW-7) along with constable Khushi Ram (PW-4) went to
AIIMS and found the prosecutrix there and he recorded her statement
at 02.30 AM on 29.07.1997 after getting the certificate from the doctor.
Ruqqa for registration of the case under Section 376 IPC was sent at
02.50 AM and 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.
29. After referring to the timings of FIR No.558/97, the High
Court held that the quarrelling ladies including the prosecutrix were in
custody of the police at least till 08.50 PM and it was highly improbable
that the prosecutrix could have come back and was alone in her jhuggi
at 09.00 PM on 28.07.1997 and that the respondents/accused entered
her jhuggi and committed rape as alleged by her and that even before
09.30 PM, she was picked up from there by PCR Van. The High Court
therefore concluded that SI Jai Bhagwan, constable Khushi Ram
(PW-4) and the prosecutrix (PW-1) have fabricated false case against
the accused. In this regard, the High Court relied upon the Report of
Joint Commissioner dated 07.11.2000 (Ex.-DW6/A) and the Report of
S.K. Gautam, DCP.
30. The reasoning of the High Court that the ladies were arrested
in connection with FIR No.558/97 under Section 160 IPC and that the
ladies must have remained with the custody of police till 09.20 PM
proceeds on presumptive footing and surmises. In his evidence, Mahanand
Jha (DW-1) has stated that "the said ladies came back to the area at
08.30 PM and started abusing the neighbourers". Likewise,
Sharabuddin (DW-2) has stated that "the police released the said ladies
including Phoola (PW-1) and after coming back to her jhuggi, she
started abusing the neighbours. Then, I informed PCR Van on
telephone and PCR Van came and took Phoola........". The High
Court failed to appreciate the testimonies of DWs 1 and 2 who have
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categorically stated that the prosecutrix had come back and was abusing
neighbours. The evidence of DWs 1 and 2 clearly shows that the
prosecutrix was let out by the police at or about 08.20 PM on 28.07.1997.
Mere fact that FIR No.558/97 under Section 160 IPC was registered at
09.20 PM does not indicate that the prosecutrix and other quarrelling
ladies were in the police custody till 09.30 PM on 28.07.1997 (with respect
to the offence in FIR No.558/97).
31. There were two sets of persons and two sets of officers are
involved in FIR No.558/97 and FIR No.559/97. The aspect regarding
FIR No.558/97 was not put to the witnesses even before the trial court.
Everything was brought about in appeal as additional evidence in exercise
of the power of the appellate court under Section 391 Cr. P.C. Placing
of heavy reliance by the High Court upon the contents in FIR No.558/97
was not a correct approach.
32. Unfortunately, the High Court was swayed by the
Departmental Enquiry Report (Ext.-DW6/A) prepared by Joint
Commissioner of Police that was brought on record by Constable
Dharamvir Singh (DW-6). Going through the entire report, we observe
that the departmental enquiry was primarily based on the diary entries
and the statements of one complainant Amod Shastri and statement of
ASI Kamal Dev. In the report, Joint Commissioner of Police, interalia concluded that the rape incident could not have happened at 09.00
PM while SI Prem Chand (DW-3) indicated that quarrelling ladies
including the prosecutrix were released at 08.50 PM.