2015 STPL(Web) 186 SC 1
Deepak Vs. State of Haryana
2015 STPL(Web) 186 SC
SUPREME COURT OF INDIA
(FAKKIR MOHAMED IBRAHIM KALIFULLA AND ABHAY MANOHAR SAPRE, JJ.)
DEEPAK
Appellants
VERSUS
STATE OF HARYANA
Respondents
Criminal Appeal No.65 of 2012-Decided on 10-3-2015.
(A) Penal Code, 1860, Section 376 – Rape - Delayed FIR – FIR got lodged after two weeks – She did
not inform the incident immediately to the parents and waited for two weeks to eventually disclose to her
mother - It was for the reason that the appellant was all along threatening the prosecutrix of the dire
consequences with the use of the evidence, which he was having with him against her – Plea on behalf of
the appellant that since no efforts were made by the prosecution to file the photographs and the recorded
conversation of the prosecutrix with the appellant and, therefore, the prosecutrix's version should not be
relied on repelled – Held that prosecutrix had no control over the investigating agency and nor the lapse
on the part of the investigating agency could in any manner affect the creditability of the statement of the
prosecutrix - Courts below rightly placed reliance on the sworn testimony of the prosecutrix on this issue
and came to a just and proper conclusion that having regard to the facts and circumstances of the case
coupled with the explanation given by the prosecutrix, there was no delay in lodging the FIR by her
mother and even if there was some delay then, in our considered view, the same was satisfactorily
explained.
(Paras 19, 21 and 22)
(B) Evidence Act, 1872, Section 114A – Rape – Presumption – Absence of Consent - In order to
enable the court to draw presumption as contained in Section 114-A against the accused, it is necessary to
first prove the commission of sexual intercourse by the accused on the prosecutrix - Second, it should be
proved that it was done without the consent of the prosecutrix - Once the prosecutrix states in her
evidence that she did not consent to act of sexual intercourse done by the accused on her which, as per her
statement, was committed by the accused against her will and the accused failed to give any satisfactory
explanation in his defence evidence on this issue, the court will be entitled to draw the presumption under
Section 114-A of the Act, 1872 against the accused holding that he committed the act of sexual
intercourse on the prosecutrix against her will and without her consent - Question as to whether the sexual
intercourse was done with or without consent being a question of fact has to be proved by the evidence in
every case before invoking the rigour of Section 114-A of the Act, 1872.
(Para 25)
(C) Penal Code, 1860, Section 376 – Evidence Act, 1872, Section 114A – Rape – Presumption –
Absence of Consent - Prosecutrix, in her sworn testimony, in clear terms has said that she did not give
her consent for commission of the act to the appellant and that he committed the act of sexual violence on
her against her will - The appellant was not able to give any satisfactory explanation in his statement
recorded under Section 313 of the Code nor was he able to adduce any defence evidence to rebut the
presumption contained in Section 114-A of the Act, 1872 against him - So far as commission of sexual
intercourse is concerned, it is proved with the medical evidence that it was performed by the appellant
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Deepak Vs. State of Haryana
with the prosecutrix - Statement of the prosecutrix has created an impression in the minds of the Court
that she is a reliable and truthful witness and her testimony suffers no infirmity or blemish whatsoever -
Even the appellant had not disputed the factum of commission of sexual intercourse by him on the
prosecutrix because the appellant's only defence was that since the prosecutrix had consented to the
commission of the sexual act - Statutory presumption contemplated under Section 114-A of the Evidence
Act against the appellant rendering him liable to suffer the conviction under Section 376 of IPC for
commission of offence of rape on the prosecutrix.
(Paras 26, 28 and 29)
(D) Penal Code, 1860, Section 376 – Rape – Sentence – Reduction of Sentence – Prayer for - Plea that
looking to the young age of the appellant and further he being the first offender and the fact that he has
already undergone 3 years 1 month in jail, this Court should take some lenient view in the matter of
awarding of the sentence to him repelled – Held that the appellant has been awarded minimum mandatory
sentence of 7 years.
(Paras 31 and 32)
Cases Referred:
1. State of Punjab vs. Gurmit Singh & Ors.[(1996) 2 SCC 384)] [Para 16]
2. Uday vs. State of Karnataka [(2003) 4 SCC 46] [Para 34]
JUDGMENT
Abhay Manohar Sapre, J.:- This criminal appeal is filed by the accused against the final order/judgment
dated 15.03.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No.2109-SB of 2009 which arises out of judgment/order dated 18.08.2009/20.08.2009 passed by the
Additional Sessions Judge, Panipat in Misc. Sessions Case No. 31 of 2007.
2. By impugned judgment/order, the High Court upheld the conviction and sentence of the appellant
awarded by the Sessions Court for the offence punishable under Section 376 of the Indian Penal Code,
1860 (hereinafter referred to as "IPC") and sentenced him to undergo rigorous imprisonment for 7 years
and a fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for another
six months.
3. In order to appreciate the issue involved in the appeal, few relevant facts need mention infra,
4. The prosecutrix (name withheld by us) was a young girl aged around 16 years 3 months at the relevant
time. She had no educational background. She was the resident of Vidya Nand Colony, Panipat and was
living with her parents and two younger sisters and three brothers. Her father, Abid was a labourer in one
factory and her mother was running a small grocery shop in their house. The appellant-accused, a young
boy in his twenties was also residing with his family as their neighbour. He was also running his own
grocery shop in his house.
5. On 02.04.2007, Sub Inspector (SI)-Prithvi Raj of Police Station Chandni Bagh received information
about the sexual assault on the prosecutrix, who was taken to the General Hospital, Panipat. After receipt
of the information, SI rushed to the General Hospital, Panipat to find out the details. He was told that the
prosecutrix was not admitted to the hospital but was got examined by the doctors. He then collected
parcel of slides, swab of the prosecutrix, samples of tests done on the prosecutrix and a copy of the MLR
and then went to the prosecutrix's residence and met her mother, Ruksana on 04.04.2007.
6. Ruksana-the mother of prosecutrix then gave her statement saying that she has three daughters - the
eldest being the prosecutrix aged around 14 years. Her husband was working as labourer and she was
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Deepak Vs. State of Haryana
running a small grocery shop. She said that the appellant (accused), their neighbour, entered in their house
a few days back in night and when she saw him, he slipped away. She had complained about this behavior
of appellant to his parents but his parents did not pay any heed to her complaint. She then said that after
some days, in their absence, Sajida-wife of Salim, who was living as their tenant in the same house, came
to their house and enticed the prosecutrix on the pretext that she should talk with the appellant- accused
regarding her love otherwise he would end his life by consuming poison. Ruksana further narrated that a
fortnight back, on hearing the noise, she woke up and saw that her daughter was coming down from the
staircase. On being asked, the prosecutrix did not give any response and avoided to give answer.
However, later on, she told Ruksana (her mother) that the appellant had raped her in the night forcefully
without her consent and threatened her not to disclose this incident to her parents or to anyone else she
will have to face the dire consequences.
7. This disclosure made by Ruksana led to registration of FIR No. 144 dated 04.04.2007 in the Police
Station Chandni Bagh, Panipat against the appellant-accused and Sajida, who as mentioned above, was
living as tenant of the prosecutrix's father in the next room. The statement of the prosecutrix under
Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") was
recorded. Her ossification test was also got done. The statements of other witnesses were recorded. The
appellant and Sajida were arrested. The appellant was medically examined. After completing the
investigation and collecting the necessary evidence, a charge-sheet was filed against the appellant and
Sajida under Sections 376/506/120-B of IPC.
8. On their appearance, the accused were supplied with all the documents relied on by the prosecution.
The case was then committed to the Court of Sessions where the court framed the charges. So far as the
appellant and Sajida were concerned, both were charged for the offence punishable under Section 120-B
IPC. So far as the appellant was concerned, he was also charged for the offence punishable under Section
376 IPC. Both the accused pleaded not guilty and claimed trial.
9. With a view to connect the appellant and Sajida with the crime, the prosecution examined 14 witnesses
namely, Ruksana, the Complainant(PW-1), the prosecutrix (PW-2), Dr. Rahul Diwan (PW-3), Dr. Shashi
Garg (PW-4), Dr. Nidhi Kharab (PW-5), Dr. Ashwani Kumar (PW-6), Ghansham Dass, ASI (PW-7),
Rajbir Singh, ASI (PW-8), Constable Jagbir Singh (PW-9), Head Constable Dharam Pal (PW-10),
Constable Joginder (PW-11), Head Constable Dharampal (PW-12), Prithvi Raj, Inspector (PW-13) and
ASI Rajbir Singh (PW-14) whereas the defence examined four witnesses, namely, Hawa Singh, Clerk,
Death and Birth, Municipal Council, Panipat as DW-1, Ashok Kumar Bathla, Senior Supervisor, BSNL,
Panipat as DW-2, Salim as DW-3 and Head Constable Kuleep as DW-4.
10. The Sessions Judge by judgment/order dated 18.08.2009/20.08.2009 held that no case of conspiracy
was proved against the appellant and Sajida of any nature and since involvement of Sajida was not proved
in this case, therefore, both of them were acquitted of the charge of conspiracy. So far as the appellant-
accused (Deepak) was concerned, it was held that the prosecution was able to prove the commission of
offence of rape on the prosecutrix by the appellant and accordingly he was convicted for the offence
punishable under Section 376 IPC and was sentenced to undergo 7 years' RI with a fine amount of
Rs.5000/- and in default to undergo further RI for 6 months.
11. Feeling aggrieved by the said order/judgment, the appellant filed appeal before the High Court. By
impugned judgment/order, the High Court dismissed the appeal and upheld the conviction and sentence
awarded to the appellant by the Sessions Court. It is against this judgment/order, the accused-Deepak has
filed this appeal by way of special leave.
12. Learned Counsel for the appellant mainly urged three submissions. In the first place, he urged that
since there was inordinate delay in filing the FIR of the incident of alleged rape by the victim or/and her
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family members, the conviction of the appellant becomes unsustainable in law and was, therefore, liable
to be set aside. Secondly, he made his submission based on the age of the prosecutrix. According to the
learned counsel, since the age of the prosecutrix was above sixteen, it should have been held to be a case
of consent given voluntarily by the prosecutrix rendering the appellant's conviction bad in law and lastly,
the ingredients of rape were not proved against the appellant, no case of rape within the meaning of
Section 376 of IPC was made out. It is essentially these three submissions, which were elaborated by the
learned counsel in his arguments by referring to the contents of the FIR and the evidence on record.
13. In contra, learned counsel for the respondent-State supported the reasoning and the conclusion of the
courts below and contended that the appeal being wholly devoid of merit, the same deserves dismissal.
14. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no
merit in any of the submissions of the learned counsel for the appellant.
15. Coming to the first submission relating to the lodging of the FIR for the commission of the offence is
concerned, in our considered opinion, there was no delay in the lodging of the FIR either and if at all there
was some delay, the same has not only been properly explained by the prosecution but also considering
the facts and circumstances of the case, it was natural.
16. The Courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and
that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of
the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to
make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of
the entire family. In such cases, after giving very cool thought and considering all pros and cons arising
out of an unfortunate incident, a complaint of sexual offence is generally lodged either by victim or by
any member of her family. Indeed, this has been the consistent view of this Court as has been held in
State of Punjab vs. Gurmit Singh & Ors.[(1996) 2 SCC 384)].
17. Keeping this well settled principle in mind, we find that the FIR in this case was lodged on
04.04.2007 when the prosecutrix disclosed to her mother of the incident first time as to what had
happened with her hardly two weeks before the date of disclosure and the mother, in turn, immediately
made a complaint to the police station and disclosed to the SI, who visited her place on coming to know
of the incident. The late disclosure of the offence by the prosecutrix was also well justified by her in her
statement recorded under Section 164 of the Code and also in her evidence wherein she said that the
appellant had taken her photographs and had also recorded her talks with him on mobile. The accused
was, as per her version, threatening her from raising any kind of alarm with the use of such evidence in
his possession.
18. The conduct of the prosecutrix, in this regard, therefore, appears to us to be most natural. She did not
inform the incident immediately to the parents and waited for two weeks to eventually disclose to her
mother. It was for the reason that the appellant was all along threatening the prosecutrix of the dire
consequences with the use of the evidence, which he was having with him against her.
19. We do not agree with the submission of the learned counsel for the appellant when he contended that
since no efforts were made by the prosecution to file the photographs and the recorded conversation of the
prosecutrix with the appellant and, therefore, the prosecutrix's version should not be relied on.
20. We cannot overlook the situation in which a young illiterate girl, who had just crossed her 16th year
and who was subjected to sexual violence against her will would immediately react. Again, in our
considered view, if the Investigating Officer did not conduct the investigation properly in not being able
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Deepak Vs. State of Haryana
to seize the photographs and recorded conversation then it could not have been made a ground to discredit
the sworn testimony of the prosecutrix, which was otherwise found to be trustworthy and consistent.
21. No one can dispute that the prosecutrix had no control over the investigating agency and nor the lapse
on the part of the investigating agency could in any manner affect the creditability of the statement of the
prosecutrix.
22. In our considered opinion, the courts below, therefore, rightly placed reliance on the sworn testimony
of the prosecutrix on this issue and came to a just and proper conclusion that having regard to the facts
and circumstances of the case coupled with the explanation given by the prosecutrix, there was no delay
in lodging the FIR by her mother and even if there was some delay then, in our considered view, the same
was satisfactorily explained.
23. This takes us to the next two submissions of the learned counsel for the appellant. The courts below
have held that the age of the prosecutrix on the date of commission of the offence was around 16 years
and 3 months. Assuming this finding to be proper, we are of the considered opinion that these
submissions have no merit in the light of the statutory presumption contained in Section 114-A of the
Evidence Act, 1872 against the appellant, which in our opinion remain unrebutted at the instance of the
appellant.
24. Section 114-A of the Indian Evidence Act was brought on statute book with effect from 25.12.1983
by the Criminal Law (Amendment) Act, 1983. It reads as under:
"114-A. Presumption as to absence of consent in certain prosecutions for rape - In a prosecution
for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-
section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the
accused is proved and the question is whether it was without the consent of the woman alleged to
have been raped and she states in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent."
25. In order to enable the court to draw presumption as contained in Section 114-A against the accused, it
is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and
second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix
states in her evidence that she did not consent to act of sexual intercourse done by the accused on her
which, as per her statement, was committed by the accused against her will and the accused failed to give
any satisfactory explanation in his defence evidence on this issue, the court will be entitled to draw the
presumption under Section 114-A of the Indian Evidence Act against the accused holding that he
committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The
question as to whether the sexual intercourse was done with or without consent being a question of fact
has to be proved by the evidence in every case before invoking the rigour of Section 114-A of the Indian
Evidence Act.
26. Coming now to the case in hand, we find that the prosecutrix, in her sworn testimony, in clear terms
has said that she did not give her consent for commission of the act to the appellant and that he committed
the act of sexual violence on her against her will. The appellant was not able to give any satisfactory
explanation in his statement recorded under Section 313 of the Code nor was he able to adduce any
defence evidence to rebut the presumption contained in Section 114-A of the Indian Evidence Act, 1872
against him. So far as commission of sexual intercourse is concerned, it is proved with the medical
evidence that it was performed by the appellant with the prosecutrix.
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27. We are alive to the law laid down by this Court wherein it is ruled that in a case of rape, no self-
respecting woman would ever come forward in a court just to make a humiliating statement against her
honour such as is involved in the commission of rape on her. The testimony of the prosecutrix in such
cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her
statement or where there are compelling reasons for rejecting of her testimony, there is no justification on
the part of the court to reject her testimony.
28. In the instant case, our careful analysis of the statement of the prosecutrix has created an impression
on our minds that she is a reliable and truthful witness and her testimony suffers no infirmity or blemish
whatsoever. That apart, as observed supra, even the medical evidence supports the commission of sexual
violence on her and we need not elaborate on this issue any more in the light of concurrent finding of the
courts below having been recorded against the appellant holding in clear terms that sign of commission of
rape on her by the appellant stood proved by medical evidence beyond reasonable doubt. Indeed, even the
appellant had not disputed the factum of commission of sexual intercourse by him on the prosecutrix
because as taken note of, the appellant's only defence was that since the prosecutrix had consented to the
commission of the sexual act, no offence of rape was made out against him. This argument we have
already rejected.
29. In the light of this, we have no hesitation in invoking the statutory presumption contemplated under
Section 114-A of the Evidence Act against the appellant rendering him liable to suffer the conviction
under Section 376 of IPC for commission of offence of rape on the prosecutrix.
30. In the light of foregoing discussion, we uphold the finding of commission of rape by the appellant on
the prosecutrix, which in our view, was rightly recorded by the two courts below.
31. The last submission of learned counsel for the appellant was that looking to the young age of the
appellant and further he being the first offender and lastly, the fact that he has already undergone 3 years
1 month in jail, this Court should take some lenient view in the matter of awarding of the sentence to him.
32. We find no merit in this submission for the simple reason that the appellant has been awarded
minimum mandatory sentence of 7 years. In other words, once the offence under Section 376 IPC is
proved then the minimum sentence is 7 years, which may extend to imprisonment for life and the fine.
Therefore, the appellant should feel fortunate that he was awarded only 7 years' sentence else it could
have been even more.
33. Since the State has not filed any appeal for enhancement of sentence, we need not go into this
question except to reject the submissions urged by the learned counsel for the appellant being totally
devoid of substance.
34. Learned counsel for the appellant had placed reliance on the decision of this Court in Uday vs. State
of Karnataka [(2003) 4 SCC 46] in support of his submissions. We have gone through the facts of this
case and find that in the light of what we have held on appreciation of the evidence of this case, the
decision relied upon may not help the appellant. In our opinion, it is distinguishable on facts.
35. In the light of foregoing discussion, we find no merit in this appeal, which fails and is accordingly
dismissed. Since the appellant is on bail by the order passed by this Court on 06.01.2012, his bail bonds
stand cancelled and he is directed to surrender forthwith to serve out the remaining period of his sentence.
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