HEM RAJ S/O. MOTI RAMversusSTATE OF HARYANA

                      -
                          [2U14] 1 S.C.R. 9 ·


                     HEM RAJ S/O. MOTi RAM                           A
~

                                  v.
                       STATE OF HARYANA
1
                  (Criminal Appeal No.9 of 2014)
                          JANUARY 3, 2014.
                                                                     B
                [RANJANA PRAKASH DESAI AND
                    J. CHELAMESWAR, JJ.]

        PENAL CODE, 1860:
                                                                     c
         s. 376 - Rape - Held: In a case involving charge of rape,
    evidence of prosecutrix is most vital and is on par with
    evidence of an injured witness - If it is found credible and
    inspires total confidence, it can be relied upon even sans
    corroboration - Court may, however, if it is hesitant to place   D
    implicit reliance on it, look into other evidence to lend
    assurance to it short of corroboration required in the case of
    an accomplice - Evidence - Evidentiary value of evidence
    of prosecutrix. .

         ss. 376 and 450 - Accused alleged to have jumped into       E
    the courtyard of prosecutrix in the night and ravished her -
    Conviction and sentence of 7 years RI by courts below - Held:
    - In the instant case, it would be extremely dangerous to rely
    on evidence of prosecutrix - She was declared hostile - In
    examination-in-chief she stated that appellant raped her and     F
    immediately thereafter retracted the statement and stated that
    he did not rape her but attempted to rape her - She refused
    to acknowledge the statement made by her to police - The
    evidence of her brother is far from satisfactory - The
    conscience of the Court would not permit it to rely on such      G
    evidence - Further, the doctor, who had examined the
    prosecutrix, was not examined in court - From the MLR
    produced in the court, it cannot be inferred that prosecutrix
    was raped by appellant - Taking an overall view of the
                                  9                                  H,
    10       SUPREME COURT REPORTS            [2014) 1 S.C.R.


A matter, prosecution case that prosecutrix was raped by
  appellant cannot be sustained - This is a case where
    appellant must be given benefit of doubt- Accordingly, his
    conviction and sentences ulss 376 and 450 are set aside.

         Investigation:
B
        Rape case - Failure of prosecution to examine the
    doctor who had examined the prosecutrix - Effect of -
    Explained.

c      The appellant was prosecuted on the allegation that
  in night of occurrence at 12.30 A.M., he jumped into the
  courtyard of the prosecutrix, a 19 year old girl, and raped
  her. The trial court convicted him ulss 376 and 450, IPC
  and sentenced him to 7 years RI and 2 years RI,
0 respectively, under the two courts. The High Court
  dismissed the appeal.

         Allowing the appeal, the Court

        HELD: 1.1. In a case involving charge of rape, the
~ evidence of the prosecutrix is most vital. If it is found
  credible and inspires total confidence, it can be relied
  upon even sans corroboration. The court may, however,
  if it is hesitant to place implicit reliance on it, look into
  other evidence to lend assurance to it short of
F corroboration required in the case of an accomplice.
  Such weight is given to the prosecutrix's evidence
  because her evidence is on par with the evidence of an
  injured witness, and, therefore, it is the duty of the court
  to scrutinize it carefully. The court must, therefore, with
G its rich experience evaluate such evidence with care and
  circumspection and only after its conscience is satisfied
  about its creditworthiness, rely upon it. [para 6] [14-D-F]

         State of Maharashtra v. C/Jandraprakash Kewalchand
    Jain1990(1)SCR115=1990 (1)SCC550- relied on.
H
 HEM RAJ S/O. MOTi RAM v. STATE OF HARYANA                11


     1.2. In the instant case, it would be extremely            A
dangerous to rely on evidence of the prosecutrix. She
knew the appellant being her neighbour. It is her case that
she used to write letters to him. In the examination-in-chief
she stated at one stage that the appellant raped her and
immediately thereafter retracted the statement and stated       B
that he did not rape her but attempted to rape her. She
refused to acknowledge that the statement which was
read over to her was made by her to the police. She
expressed surprise as to how her signatures appeared
on the said statement. The Public Prosecutor had to,            c
therefore, declare her hostile. The conscience of the
Court would not permit it to rely on such evidence. It
would be hazardous to confirm the conviction on the
prosecutrix's sole testimony. [para 8] (15-H; 16-A-C]
      1.3.The evidence of PW-1, the brother of the              D
prosecutrix, is far from satisfactory and is incapable of
offering any corroboration to the prosecutrix's evidence,
assuming her evidence does spell out the case of rape.
He stated that the appellant had closed the prosecutrix's
mouth and was trying to rape her. He stated that he             E
apprehended the appellant and woke up his father. He
further stated that he told the police that the appellant
had attempted to rape the prosecutrix. He was confronted
with his police statement where he had stated that the
appellant had raped the prosecutrix. He went to the extent      F
of saying that he did not make any statement to the
police. No reliance can be placed on such evidence. [para
9] (16-D, E-H]
     1.4. The prosecution has failed to examine the doctor
who had examined the prosecutrix. This is a serious lapse       G
on the part of the prosecution. The MLR was produced in
the court by PW-6, the Medical Record Technician. It is
true that lapses on the part of the prosecution should not
lead to unmerited acquittals. This is, however, subject to
the rider that in such a situation the evidence on record       H
    12       SUPREME COURT REPORTS                [2014] 1 S.C.R.


A   must be clinching so that the lapses of the prosecution
    could be condoned. Such is not the case here. The MLR
    does suggest that the hymen of the prosecutrix was torn.
    It is difficult to infer that the prosecutrix was raped by the
    appellant. [para 10] (17-A-D]
B      1.5. Taking.an overall view of the matter, the
  prosecution case that the prosecutrix was raped by the
  appellant cannot be sustained. This is a case where the
  appellant must be given benefit of doubt. In the
  circumstances, the impugned judgment convicting the i
C appellant u/ss 376 and 450 of the IPC and sentencing him
  for the said offences is quashed and set aside. [para 10-
  11] (17-E-G]
                         Case Law Reference:
D        1990 (1) SCR 115         relied on             para 6
        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 9 of 2014.

      From the Judgment & Order dated 22.11.2011 of the High
E Court of Punjab & Haryana at Chandigarh in Criminal Appeal
  No. 853-SB of 2001.

        D.P. Singh, Sonam Gupta, Salil Bhattacharya, Rajkiran
    Vais, Ravi Prakash Vyas (for Shivaji M. Jadhav) for the
F   Appellant.

        Deepkaran Dalal, AAG, Naresh Bakshi for the
    Respondent.

         The Judgment of the Court was delivered by
G       (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
    gr9nted.

       2. The appellant was tried by the Additional Sessions
  Judge, Faridabad in Sessions Case No.RBT-8 of 1999 for
H offences punishable 1:1nder Secti6.~s ~76. and 450 of the IPC.
                                              I
   HEM RAJ S/O. MOTi RAM v. STATE OF HARYANA                    13
          [RANJANA PRAKASH DESAI, J.]
                                                                      .1
 By judgment and order dated 3/8/2001', learned Additional            A
 Sessions Judge convicted the appellant for the offence
 punishable under Section 376 of the IPC and senteAced him
 to undergo rigorous imprisonment for seven years and to pay
 a fine of Rs.5,000/-. In default of payment .of fine, he was
 directed to undergo rigorous imprisonment for a period of o"ne       s
 year. The appellant was also convicted for offence punishable
 under Section 450 of the IPC and sentenced to undergo
 rigorous imprisonment for two years and to pay '1 fine of
 Rs.1,000/-. In default of payment of fine, he was directed to
 undergo rigorous imprisonment for a period of two 'months. The       c
 substantive sentences were ordered to run concurrently. Being
 aggrieved by the said conviction and sentence, the appellant
 filed criminal appeal in the Punjab and Haryana High Court. By
 the impugned judgment, the High Court dismissed the said
 appeal. Hence, this appeal, by special leave.
                                                                      D
        3. According to the prosecution on 12/3/1999, the
  prosecutrix who was examined as PW-5 was watching a film
  on television along with her younger brothers till 12.30 in the
  night. Both her brothers went to sleep. She went outside the
· veranda to relieve herself. The appellant, who is her neighbour,    E
  was standing on the wall of his house. He jumped from the wall,
  came to her house and raped her. When the prosecutrix raised
  alarm, her elder brother PW-1 Fateh Ram came there
  whereupon the appellant ran away. The prosecutrix lodged her
  complaint on 14/3/1999 on the basis of which investigation was      F
  set into motion. After·completion of investigation, the appellant
  came to be charged as aforesaid.

      4. The prosecution \case is sought to be established
 through the evidence of th~\prosecutrix and her brother PW-1
 Fateh Ram. The appellant denied the prosecution case and             G
 pleaded innocence. Having gone through the evidence
 adduced by the prosecution, the trial court convicted the
 appellant and sentenced him as aforesaid. The High Court
 confirmed the conviction and sentence of the appellant.
                                                                      H
    14        SUPREME COURT REPORTS                   [2014) 1 S.C.R.


A       5. Mr. D.P. Singh, learned counsel for the appellant,
  strenuously urged that the evidence of the prsoecutrix is totally
  unreliable and deserves to be discarded. She has not
  supported the prosecution. Evidence of her brother also does
  not substantiate the prosecution case. The doctor who
8 examined the prosecutrix has not been examined by the.
  prosecution. Counsel submitted that conviction of the appellant
  must, therefore, be set side. Mr. Deepkaran Dalal, learned AAG
  for the State, however, submitted that the prosecution case can
  be sustained on the basis of the evidence of the prosecutrix:
C The Medico Legal Report (MLR) establishes the case of rape.
  The appeal, therefore, deserves to be dismissed.

        6. In a case involving charge of rape the evidence of the
  prosecutrix is most vital. If it is found credible; if it inspires total
  confidence, it can be relied upon even sans corroboration. The
D court may, however, if it is hesitant to place implicit reliance on
  it, look into other evidence to lend ass.urance to it short of
  corroboration required in the case of an accomplice. [See:
  State of Maharashtra v. Chandraprakash Kewalchand Jain1].
  Such weight is given to the prosecutrix's evidence because her
E evidence is on par with the evidence of an injured witness which
  seldom fails to inspire confidence. Having placed the
  prosecutrix's evidence on such a high pedestal, it is the duty
  of the court to scrutinize it carefully, because in a given case
  on that lone evidence a man can be sentenced to life
F imprisonment. The court must, therefore, with its rich experience
  evaluate such evidence with care and circumspection and only
   after its conscience is satisfied about its creditworthiness rely
   upon it.
       7. We shall now read the prosecutrix's evidence keeping
G the above caution in mind. There is no dispute about the fact
  that when the incident-in-question took-place the prosecutrix
  was 19 years old. In her evidence she stated that on 12/03/
  1991 she was watching a movie on the television along with

H 1. (1990) 1 sec 550.
 HEM RAJ S/O. MOTi RAMv. STATEOF HARYANA                       15
        [RANJANA PRAKASH DESAI, J.]
her brothers. The movie got over at about 12.30 a.m. A
Thereafter, her brothers went to sleep. After that she went to
the compound to ease herself. The appellant, who is her
neighbour, was standing on the wall. He jumped over the wall, ·
came to her house and raped her. She immediately retracted
her statement and stated that the appellant did not rape her but B
undressed her and attempted to rape her. Thereafter, she
raised a cry. Her brother PW-1 Fateh Ram came there. The
appellant ran away. The prosecutrix further went on to say that
because the appellant tried to rape her she was depressed
and hence she consumed celphos table.ts. She, then, c
categorically stated that she did not makt! any statement to the
police. She admitted that statement Ex-P1 contained her
signatures, but, she denied that the said statement, which was ·
read over to her was made by her to the police. She further
stated that she did not know how her signatures appeared on
                                                                     0
the said statement. The prosecutrix having completely given a
go-byJo the prosecution case learned Public Prosecutor
declared her hostile. He cross-examined her. Surprisingly, in
the cross-examination the prosecutrix changed her version and
stated that the appellant had raped her and her earlier
statement that the appellant had not raped her is not correct. E
In her cross-examination conducted by the defence counsel, the
prosecutrix stated that she did not raise any alarm when she
saw the appellant standing on the wall of his house. She stated
that the appellant removed her salwar, removed all her clothes
and raped her for about five minutes. Though, she stated that F
the accused had closed her mouth and did not allow her to
struggle, it does not stand to reason that till the appellant untied
the string of her salwar and removed all her clothes she could
not raise a cry. Her cries would have brought her brother
immediately to the room. Pertinently, the prosecutrix stated that G
the appellant used to visit her house. She admitted that prior
to the occurrence she used to write letters to him.

     8. It would be extremely dangerous to rely on such
evidence. The prosecutrix obviously knew the appellant being
                                                                    H
    16       SUPREME COURT REPORTS               [2014] 1 S.C.R.


A her neighbour. It is her case that she used to write letters to
  him. In the examination-in-chief she stated at one stage that the
  appellant raped her and immediately thereafter retracted the
  statement and stated that he did not rape her but he attempted
  to rape her. She refused to acknowledge that the statement
B which was read over to her was made by her to the police. She
  expressed surprise as to how her signatures appeared on the
  said statement. The Public Prosecutor had to, therefore,
  declare her hostile. Our conscience would not permit us to rely
  on such evidence. It would be hazardous to confirm the
C conviction on the prosecutrix's sole testimony. Let us, therefore,
  see whether there is any other evidence on record which bears
  out the prosecution case.

         9. PW-1 Fateh Ram brother of the porsecutrix stated in his
  evidence that at the relevant time he was sleeping in his house.
D The prosecutrix and his two brothers were witnessing film on
  the television. The film ended at about 12.30 a.m. in the night.
  Thereafter the prosecutrix went out to ease herself. He also got
  up after some time to ease himself and went out. According to
  him, he found the appellant in their house. He stated that the
E appellant had closed the prosecutrix's mouth and was trying to
  rape her. He, then, apprehended the appellant and woke up his
  father. The appellant was beaten-up. After his brother came he
  w~s allowed to go. He stated that he did not make any statement
  to the police. He stated that he did not tell the police that he
F went to sleep while the prosecutrix was watching television
  along with her brothers. He stated that he had told the police
  that the appellant had attempted to rape the prosecutrix. He
  was confronted with his police statement where he had stated
   that the appellant had raped the prosecutrix. Thus, on a vital
G aspect he has contradicted himself. His evidence is, therefore,
   far from satisfactory and incapable of offering any corroboration
   to the prosecutrix's evidence, assuming her evidence does
   spell out the case of rape. He went to the extent of saying that
   he did not make any statement to the police. No reliance can
H be placed on such evidence.
  HEM RAJ S/O. MOTi RAM v. STATE OF HARYANA                      17
         [RANJANA PRAKASH DESAI, J.]
      10. Faced with such a situation, we were anxious to find         A
 out whether there can be any clinching medical evidence
 suggesting rape, but, unfortunately, the prosecution has faiied
to examine Dr. Anjali Shah, who had examined the prosecutrix.
 The MLR was produced in the court by PW-6 J.B. Bhardwaj,
 Medical Record Technician. This is a serious lapse on the part        B
 of the prosecution. We are aware that lapses on the part of the
prosecution should not lead to unmerited acquittals. This is,
however, subject to the rider that in such a situation the evidence
on record must be clinching so that the lapses of the
prosecution could be condoned. Such is not the case here. The          c
MLR does suggest that the hymen of the prosecutrix was torn.
It is also true that the prosecution has brought on record FSL
Report which shows that human semen was detected on the
salwar of the prosecutrix and on the underwear of the accused.
However, it is difficult to infer from this that the prosecutrix was   D
raped by the appellant. The prosecutrix herself has vacillated
on this aspect. It was pointed out that no injuries were found
on the prosecutrix. We do not attach ml.fch importance to this
aspect because presence of injuries is not a must to prove
commission of rape. But the prosecutrix's evidence is so infirm
                                                                       E
that it deserves to be rejected. Her brother has come out with
a case that the appellant tried to rape the prosecutrix. He did
not say that the appellant raped the prosecutrix. Taking an
overall view of the matter, we find it difficult to sustain the
prosecution case that the prosecutrix was raped by the
appellant. This is a case where the appellant must be given            F
benefit of doubt

     11. In the circumstances, the impugned judgment
convicting the appellant under Sections 376 and 450 of the IPC
and sentencing him for the said offences is quashed and set            G
aside. The appellant is directed to be released forthwith, unless
he is required in any other case.

       12. The appeal is disposed of in the afore-stated terms.

R.P.                                             Appeal allowed.       H