Supreme Court of India
PARKASH CHANDversusSTATE OF HIMACHAL PRADESH
- Citation
- 2019 INSC 182
- Decided
- 12 February 2019
- Disposal
- Appeal(s) allowed
- Bench
- RANJAN GOGOI
Holding
The conviction was set aside because the evidence was unreliable and the appellant was entitled to the benefit of doubt.
Summary
The appellant, Parkash Chand, was convicted under Sections 376 and 506 of the Indian Penal Code for raping and intimidating the prosecutrix, PW2, based primarily on her testimony and alleged extra‑judicial confessions to witnesses PW4 and PW5. The FIR was lodged seven months after the alleged incident, and no contemporaneous medical evidence was produced. The Supreme Court, on special leave, examined the credibility of the witnesses and found inconsistencies in the statements of PW4 and PW5, and noted that the prosecution’s case rested on the sole oral testimony of the prosecutrix without corroboration. The Court held that the delay in filing the FIR and the lack of reliable evidence rendered the conviction unsafe, invoking the principle of benefit of doubt. Consequently, the Court set aside the conviction and sentence, and discharged the appellant’s bail bond.
Issues considered
- The reliability of the prosecutrix's sole testimony in a rape case where the FIR was lodged after a seven‑month delay.
- The admissibility and credibility of alleged extra‑judicial confessions made to witnesses PW4 and PW5.
- Whether the delay in filing the FIR warrants a reversal of conviction under Sections 376 and 506 IPC.
- The adequacy of the charge under Section 506 read with Section 34 IPC in relation to the alleged acts.
Legislation cited
- Indian Penal Code, 1860s. 34, s. 376, s. 506
Subjects
rapedelay in FIRextra‑judicial confessionbenefit of doubtevidence reliabilitycriminal intimidationIPC Section 376IPC Section 506special leave petitionmedical examination
Judgment
[2019] 3 S.C.R. 953 953
PARKASH CHAND A
v.
STATE OF HIMACHAL PRADESH
(Criminal Appeal No. 2393 of 2010)
FEBRUARY 12, 2019 B
[RANJAN GOGOI, CJI, SANJAY KISHAN KAUL AND
K. M. JOSEPH, JJ.]
Penal Code, 1860 – ss. 376 and 506 – Rape – PW.2-
prosecutrix alleged that appellant caught hold of her on a common
path of villages and dragged her in the bushes – She raised hue C
and cry but nobody was there at the place of occurrence – Appellant
committed rape on her – Consequent to which, prosecutrix got
pregnant – After 7 months of alleged commission of offence, FIR
was lodged – Trial Court convicted appellant u/ss. 376 and 506
IPC – Conviction affirmed by the High Court – On appeal, held: D
High Court proceeded on the basis of testimony of prosecutrix and
extra- judicial confession made before PW.4 and PW.5 – There were
different versions of PW.3 and PW.4 about the disclosure of the
incident to them by the prosecutrix – PW.4 evidence was based on
prosecutrix going to him and revealing him about the incident
whereas, PW.3 stated that after prosecutrix told her about the alleged E
rape, PW.3 disclosed the factum of alleged rape to PW.4 – And,
prosecutrix stated that incident was disclosed by PW.3 to PW.4 –
This falsified the version of PW.4 – In such circumstances, not safe
to draw support from alleged extra-judicial confession made by
appellant to PW.4 – PW.5 too gave contradictory version of facts F
regarding appellant coming to him and requesting compromise with
prosecutrix – Insofar as prosecutrix is concenred, if she had raised
hue and cry, it was very unlikely that the labourers who used the
common path did not hear it – Thus, unsafe to convict appellant on
testimony of the prosecutrix – Appellant entitled to the benefit of
doubt. G
Evidence – Critical examination of evidence in an appeal by
special leave – Held: This Court has indulged in a closer look at
the evidence in these proceedings having regard to the need to do
so in view of the fact that the complaint itself is lodged after 7
months – If the evidence adduced by the prosecution falls short of H
953
954 SUPREME COURT REPORTS [2019] 3 S.C.R.
A the test of reliability and acceptability and as such it is highly
unreliable to act upon it even in an appeal by special leave, such a
critical examination may not be unwarranted.
Delay/ Laches – Offence of Rape – Delay of 7 months in
lodging the FIR – Held: There is admittedly a delay of 7 months in
B lodging the FIR in the case of alleged rape – If the case is reported
immediately apart from the inherent strength of the case flowing
from genuineness attributable to such promptitude, the perceptible
advantage would be the medical examination to which the
prosecutrix can be subjected and the result of such examination in
a case where there is a resistance – It is the case of the prosecution
C that she raised hue and cry and therefore apparently she would
have resisted – Possibly, a medical examination may have revealed
signs of any resistance or injuries.
Allowing the appeal, the Court
D HELD: 1. There is admittedly a delay of 7 months in lodging
the FIR in the case of alleged rape. If the case is reported
immediately apart from the inherent strength of the case flowing
from genuineness attributable to such promptitude, the
perceptible advantage would be the medical examination to which
the prosecutrix can be subjected and the result of such
E examination in a case where there is a resistance. It is the case
of the prosecution that she raised hue and cry and therefore
apparently she would have resisted. Possibly, a medical
examination may have revealed signs of any resistance or injuries.
In this case the High Court has proceeded on the basis
F of testimony of the prosecutrix and sought to fortify it by
the extra judicial confession made before PW4 and PW5.
[Para 14][964-B-D]
2. As far as PW 4 is concerned, his evidence is based on
the prosecutrix going to him on 05/07/2000 and revealing to him
G about the incident whereas PW3, the maternal aunt of the
prosecutrix clearly says that after prosecutrix told her about the
alleged rape and when PW4 came to visit the same village where
his in-laws also resides at that juncture on 07/07/2000, the factum
of the alleged rape was disclosed to him and he came to know on
the said basis. This is a completely different version from what
H PW4 has spoken. If PW3 is to be believed, then knowledge about
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 955
the alleged incident was gained by P.W.4 only on 07/07/2000 and A
that too from PW3 instead he sets up the case that on 05/07/2000
the prosecutrix went to his house and told him about the same.
In fact, even the prosecutrix in her version has no such case.
Rather, the prosecutrix would say that the incident was disclosed
by P.W.3 to P.W.4. This completely falsifies the version of P.W.4
B
that on 5.7.2000 the prosecutrix went and told him about the
incident including about the threat of using the knife. P.W.4 as
noted in further cross examination would state that he did not
tell the police on the basis that she had not told him about it.
This would again show that version of P.W.4 that prosecutrix had
went and told him about the incident, cannot be believed. No C
doubt, P.W. 4 seeks to state that he did not tell the Police about
what the prosecutrix told him thinking that prosecutrix would
have told the police about it. It does not appear to be safe. In
such circumstances, it may not be safe to draw support from the
alleged extra judicial confession alleged to have been made by
D
the appellant to him. [Para 15][964-D-H; 965-A]
3. As far as P.W.5 who again has been believed by the courts,
it was noticed that in the cross examination he categorically states
that the appellant and also co-accused did not ask him for
compromise. This is contrary to his version that on the way back
to his home on 09/07/2000 he met him and he sought for a E
compromise. It is also to be noted that PW 4 has stated in his
cross examination that PW5 had met him on 05/07/2000 along
with the appellant. This is not considered by the courts below.
This Court has indulged in a closer look at the evidence in these
proceedings having regard to the need to do so in view of the F
fact that the complaint itself is lodged after 7 months. If the
evidence adduced by the prosecution falls short of the test of
reliability and acceptability and as such it is highly unreliable to
act upon it even in an appeal by special leave, such a critical
examination may not be unwarranted. [Para 16][955-E-F]
G
4. If this Court does not place confidence in the deposition
of PW4 and PW5 then the case would depend upon the credibility
of PW2, the prosecutrix. The incident is alleged to have taken
place near a path which has been admitted by the prosecutrix
and her aunt PW3 as common path. If indeed the prosecutrix
H
956 SUPREME COURT REPORTS [2019] 3 S.C.R.
A has raised hue and cry as in the case reported in 2013 (9) SCC
113, it is very unlikely that the labourers who are supposed to
haunt the common path could not hear it. There is a case of the
appellant that the evidence would make out a case of consensual
sex. It is true that in the High Court, it is recorded that there is
no case of consensual sexual intercourse as such argued but the
B
case is to be decided on the basis of evidence. In the
circumstances of this case that the appellant cannot be convicted
for the offence under Section 376. It would indeed be unsafe
to convict him based on the testimony of the prosecutrix.
He would certainly be entitled to the benefit of doubt.
C [Para 17][965-G, H; 966-A-B]
Vijayan v. State of Kerala (2008) 14 SCC 763 ; Kaini
Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]
10 SCR 196 – relied on.
State of Himachal Pradesh v. Shree Kant Shekari AIR
D 2004 SC 4404 : [2004] 4 Suppl. SCR 380 ; Tulshidas
Kanolkar v. State of Goa (2003) 8 SCC 590 : [2003]
4 Suppl. SCR 978 ; Ganga Kumr Srivastava v. State of
Bihar (2005) 6 SCC 211 – referred to.
Case Law Reference
E
(2008) 14 SCC 763 relied on Para 5
[2004] 4 Suppl. SCR 380 referred to Para 5
[2003] 4 Suppl. SCR 978 referred to Para 5
[2013] 10 SCR 196 relied on Para 7
F
(2005) 6 SCC 211 referred to Para 16
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2393 of 2010.
From the Judgment and Order dated 11.05.2010 of the High Court
G of Himachal Pradesh at Shimla in Criminal Appeal No. 615 of 2002.
Rana Ranjit Singh, Vivek Kumar Singh, Ravish Singh, Advs. for
the Appellant.
Abhinav Mukerji, AAG, Siddharth Garg, Ms. Bihu Sharma, Advs.
for the Respondent.
H
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 957
The Judgment of the Court was delivered by A
K. M. JOSEPH, J.
1. This is a criminal appeal by special leave challenging the order
dated 11.5.2010 passed by the High Court of Himachal Pradesh at Shimla
in Criminal Appeal No.615 of 2002 affirming the conviction of the appellant
under Sections 376 and 506 of the Indian Penal Code. In short, the B
case of the prosecution is as follows:
In December, 1999, the appellant committed rape upon P.W.2. It
is also the further case that P.W.2 was intimidated by the appellant
and another co-accused. The appellant was charged under
Sections 376 and 506 IPC read with Section 34 of the Indian C
Penal Code and co-accused was charged under Section 506 read
with Section 34 of the IPC. The trial Court found the case in
favour of the prosecution and after convicting the appellant and
co-accused sentenced the appellant to simple imprisonment for 7
years and a fine of Rs.10,000/- with default sentence for the D
offence punishable under Section 376 of the IPC. He was also
sentenced for 2 years for the offence punishable under Section
506 IPC. Both the sentences were to run concurrently. The co-
accused stands acquitted by the High court whereas the appeal
filed by the appellant was unsuccessful.
E
2. We heard learned counsel for the parties. The learned counsel
for the appellant would point out that PW2, the prosecutrix was above
the age of 16 years. Learned counsel for the appellant would seek to
extricate the appellant from culpability on the score that the case of the
prosecutrix is based on the FIR which is lodged 7 months after the alleged
commission of the rape. There is delay of 7 months in lodging the FIR F
just as in the case of Vijayan v. State of Kerala 2008 (14)SCC 763. In
this case also the prosecutrix was pregnant at the time of filing the
complaint. The FIR was filed on 17.7.2000. whereas the incident is alleged
to have taken place in December, 1999. He points out that it is allegedly
filed after the prosecutrix told PW1 who accompanied her to Deputy G
Commissioner Office, Chamba. It is pointed out that according to the
prosecution on 17.7.2000 when she came to Chamba to get medicines,
she allegedly disclosed the incident to PW1 and appellant has been
implicated thereafter. It is the case of the appellant that P.W.1 is a
resident of the same village and that P.W.1 has spoken about having met
the prosecutrix even earlier but nothing about the alleged rape was H
disclosed.
958 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 3. Per contra, the learned counsel for the respondent-State would
point out that there was ample evidence in the form of testimony of the
prosecutrix. Besides that learned counsel also drew our attention to the
evidence of PW4 before whom the appellant himself made an extra
judicial confession. So also attention was drawn to the evidence of
PW5.
B
4. PW5 has also deposed that the appellant requested him with
folded hands for compromise as he has committed wrong with PW2, the
prosecutrix and he wanted to keep her and her child as his own.
5. The first question we have to consider is the impact of delay of
C nearly 7 months in lodging the complaint with the police. The appellant
seeks support mainly from the judgment of this Court in the case of
Vijayan v. State of Kerala 2008 (14)SCC 763. The High court in the
impugned judgment has on the other hand relied upon the judgment of
this Court reported in State of Himachal Pradesh v. Shree Kant Shekari
AIR 2004 SC 4404. Therein, this Court has essentially relied upon the
D principles about the impact of delay as noticed by it in the judgment of
this Court in Tulshidas Kanolkar v. State of Goa reported in 2003 (8)
SCC 590 wherein rape was committed on a girl whose mental ability
was undeveloped. This is what the court had to say about the fact of
delay.
E “……………In any event, delay per se is not a mitigating
circumstance for the accused when accusations of rape are
involved. Delay in lodging the first information report cannot be
used as a ritualistic formula for discarding prosecution case and
doubting its authenticity. It only puts the court on guard to search
F for and consider if any explanation has been offered for the delay.
Once it is offered, the Court is to only see whether it is satisfactory
or not. In a case if the prosecution fails to satisfactorily explain
the delay and there is possibility of embellishment or exaggeration
in the prosecution version on account of such delay, it is a relevant
factor. On the other hand, satisfactory explanation of the delay is
G weighty enough to reject the plea of false implication or
vulnerability of prosecution case. As the factual scenario shows,
the victim was totally unaware of the catastrophe which had
befallen her. That being so, the mere delay in lodging of the first
information report does not in any way render prosecution version
H brittle.”
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 959
[K. M. JOSEPH, J.]
6. In Vijayan case (supra) the prosecutrix who was aged about A
17 years was the neighbor of the accused. In her testimony the
prosecutrix set up the case that accused has raped her when no one else
was there in the house and she was raped in the house. The accused-
appellant was alleged to have been told that she need not worry as he
will marry her. She did not give any complaint either to her parents and
B
police in view of the promise. She became pregnant and while she was
carrying a child of 7 months, she requested the accused to marry her.
The accused declined. Thereafter a complaint was filed after 7 months.
On these facts this court noted that no complaint or grievance was made
either to the police or the parents thereto. The explanation for delay in
lodging the FIR was noted namely that the accused promised to marry C
her and therefore the FIR was not filed. The Court held as follows:
“…………In cases where the sole testimony of the prosecutrix
is available, it is very dangerous to convict the accused, specially
when the prosecutrix could venture to wait for seven months for
filing the FIR for rape. This leaves the accused totally defenceless. D
Had the prosecutrix lodged the complaint soon after the incident,
there would have been some supporting evidence like the medical
report or any other injury on the body of the prosecutrix so as to
show the sign of rape. If the prosecutrix has willingly submitted
herself to sexual intercourse and waited for seven months for
filing the FIR it will be very hazardous to convict on such sole oral E
testimony. Moreover, no DNA test was conducted to find out
whether the child was born out of the said incident of rape and
that the appellant-accused was responsible for the said child. In
the face of lack of any other evidence, it is unsafe to convict the
accused.” F
7. In the case of Kaini Rajan v. State of Kerala reported in 2013
(9) SCC 113, on 17.9.1997 at about 8.30 a.m. it was alleged the prosecutrix
was raped at a site which was by the side of a public road. It was the
case of the prosecutrix that she tried to make hue and cry but was
silenced by the accused by stating that he would marry her. Even after G
this incident he had sexual intercourse on more than one occasion. The
prosecutrix became pregnant, gave birth to a child and accused did not
keep his promise to marry her. It is thereafter that on 26.7.1998 nearly
10 months after the alleged rape that a case was registered. This Court
referred the Vijayan’s case (supra), took note of the place being on the
H
960 SUPREME COURT REPORTS [2019] 3 S.C.R.
A side of a public road, the aspect of delayed filing of the report and also
the behavior of the parents of the prosecutrix in not approaching the
family members of the accused for marrying the prosecutrix and instead
lodging the report. The Court also found that having regard to the site, if
the prosecutrix has made any resistance or made hue and cry it would
have attracted large number of people from the locality. The appeal
B
filed by the accused was allowed.
8. It is in the background of the aforesaid principle that we must
examine the question. P.W. 2 prosecutrix has undoubtedly stated that
her parents had died and she was left without any brother and sister.
She was brought up by her uncle and aunt. She studied upto 9th class.
C On 5.12.1999 while she was coming back at about 5-6 p.m. the appellant
who is also the resident of the same village and who is related to her as
brother in village relation caught hold of her and started dragging her
towards the lonely place in the bushes and committed rape. She raised
hue and cry but nobody was there at the place of occurrence. The
D appellant showed her knife and threatened her to do away with her life
in case she disclose the incident to anybody. She stated that she was so
frightened and ashamed due to which she did not disclose the incident to
anyone. After staying with her maternal grandmother when she came
back she knew about becoming pregnant. Her aunt enquired about her
womb looking bigger and she told her about the incident. Aunt sent her
E to the home of her maternal grandmother. The incident came to be
disclosed by her aunt to P.W.4 who is also maternal uncle of the
prosecutrix. A ‘baradari’ was called. She was also present. The
appellant though called, did not appear. On 9.7.2000, persons including
P.W.4 and appellant came there and the latter told her that he is prepared
F to take her and child to accompany him and that he would get her and
her child recorded as his wife and child. She accompanied the appellant
by making to understand by matrimonial uncle P.W.4. She stayed there
for one day and two nights. It is thereafter the accused refused to keep
her at his house and the co-accused also threatened that they will not
keep her in the house and nor would get the child recorded. In short, she
G was turned out. She stated that she requested the accused not to turn
her out as she was pregnant. On 17.7.2000 when she came to Chamba
for getting the medicines, she met P.W.1 the person whom she described
as brother and she told him the whole incident. She also asked to get the
matter reported at the police. It is thereafter that the complaint was
H lodged. She states in her cross examination that it is correct that the
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 961
[K. M. JOSEPH, J.]
path is a common village path and people used to pass through the said A
path. She stated there was none at that time. She would say that it is
correct that the labourers used to go their house after finishing their
labour work. She made cries at the time when the accused caught hold
of her by showing a knife. She stated that she had gone to the house of
appellant of her own free will. She volunteered to say that the accused-
B
appellant had giving assurance that she is his wife and was carrying his
child in her womb. She disclosed that she told her grandmother about
the rape and that she was turned out by the uncle. The grandmother
(Nani) told her to go to the house of the accused-appellant. It was out
of fear that she did not disclose to anyone. She states that P.W.1 met
her for the first time at Chamba and the incident was also disclosed to C
him for the first time. She admits knowing the accused since her childhood
but denied having either played with him or studied with him. She states
that when she went to the house of the appellant, she slept with him
during the night. She stated that she had told the petition writer that the
appellant took her forcibly at the point of knife and threatened to kill her
D
with the same. She was confronted with the petition wherein it was not
so recorded. In the petition to the police also it is her statement she has
stated so but it was found not recorded.
9. We may also notice also the deposition of P.W.1 to whom
according to her, she disclosed for the first time in July, 2000 and with
whom she lodged a complaint. He stated that it was disclosed by her to E
him that the appellant committed rape when she was coming back to her
house after purchasing medicines. He admits that the uncle of the
prosecutrix is alive and he has not lodged any complaint. He admits that
village Dugli to which place prosecutrix had gone in December, 1999 to
purchase article is scattered within a radius of one kilometer. He would F
say that he got drafted in Exhibit P.A. that prosecutrix had disclosed to
him that the appellant had threatened her with knife/dagger in case she
disclosed the incident to anyone. He stated that this fact was not got
drafted in Exhibit P.A.
10. P.W.3 is not only married to uncle of the prosecutrix but is G
also the elder sister of her own mother. She has inter alia stated that
when PW.2 after staying at her maternal grandmother’s house for 3
months and thereafter after coming back after 21/22 days, on noticing
that her womb was getting bigger and on her being questioned about it,
she disclosed what happened in December, 1999 namely, the rape
H
962 SUPREME COURT REPORTS [2019] 3 S.C.R.
A committed by the appellant. She also stated that out of fear as well as
feeling ashamed this was not disclosed to anyone. Again, PW 2 was
sent back to her maternal grandmother’s house who is none other than
the mother of PW 3. At that time PW 2 was six months pregnant. PW
3 would further state that Rattan Chand (who was in fact examined as
PW 4) who is maternal uncle of the prosecutrix and who is having in
B
laws in her village visited her house. She claims to have thereupon
disclosed about the rape to him. The prosecutrix was thereupon called
back from her maternal grandmother’s house. A baradari was called.
The appellant did not attend. Thereafter she speaks about her coming
to know that prosecutrix went with the appellant and stayed with him
C and was turned out later on. In Cross Examination she would state that
the prosecutrix was carrying pregnancy of 6 months when the baradari
meeting was called. She disclaims knowledge of the outcome in the
meeting. She admits that the stomach would start bulging out in 4 months
pregnancy. In further cross she would state that prosecutrix continued
for 15 days at her house after the disclosure about carrying the child of
D
the appellant and thereafter she went to maternal grandmother’s house.
She admits that she and her husband (namely, uncle of prosecutrix) did
not lodge any report either with the Pradhan or the Police. The
prosecutrix was brought up by them from the age of about 2 ½ years. In
regard to the path she denied that there is only path in between Bhogi
E and Dugli village. She states there are two to three other paths. She,
however, admits that this path is a common path.
11. PW 4 Rattan Chand however, has a different version about
how he came to know about the matter. He would state that prosecutrix
is related to him. On 5.7.2000 she came to his house at village Panjah.
F On inquiry about her womb being bigger than normal she told him about
the forcible sexual intercourse committed by the appellant in December,
1999 and about her being threatened with the help of a knife not to
disclose it to anyone. He further states two days thereafter, namely on,
7.7.2000 he came to the house of his in-laws in village Bhoga and this
fact was disclosed to the Panchayat member Bhola Ram who suggested
G a ‘Baradari’ meeting. In the said baradari meeting Loki Nand, Kishan
Chand, Balo Ram and the prosecutrix was also there. As the appellant
and his family members did not attend the meeting, the meeting could
not take place. He further states that it was subsequently decided to
report to the matter to the Police. Two days thereafter, namely, on
H 9.7.2000 at about 9/10 p.m., appellant and, PW 5 came to his father-in-
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 963
[K. M. JOSEPH, J.]
law. They wanted to have special talk with him. It is thereupon that he A
says that the appellant requested him with folded hands that since he
was the maternal uncle of the prosecutrix that he has committed wrong
with her by committing forcible sexual intercourse due to which she
became pregnant and the foetus in her womb belongs to him. He wanted
to take the prosecutrix to his house and wanted to keep her as his wife
B
and also unborn child and to get them recorded in the Panchayat Register
if they were ready to send her as his wife. Under compelling
circumstances and having no other way it was decided to send the
prosecutrix as his wife. The prosecutrix was not ready to go as his wife
but she was made to understand and then she went to the house of the
accused-appellant. She was taken on the same night. She stayed for C
one day and two nights. Then she was turned out. In cross examination
he states that he did not report the matter to any authority when the
prosecutrix disclosed the incident to him. After ‘baradari’ meeting the
prosecutrix started living with her Nani. He further states that the
accused-appellant visited his house on 5.7.2000 and at that time Sahib
D
Singh (PW 5), Khelku Devi and the prosecutrix was also present. The
appellant was accompanied by PW 5.
12. He admits that his statement was recorded by the police. He
states that he did not state to the police that the prosecutrix told him that
the appellant had met her on the way and that he had committed forcible
sexual intercourse with her. E
He further states as follows:
“It is correct that I have not stated the aforesaid facts to the
Police as it was not disclosed to me by the prosecutrix”.
No doubt, thereafter it is found that he states as follows: F
“I have not stated to the Police that the Prosecutrix told me that
the appellant took her to the bushes on the point of knife on the
pretext that the prosecutrix had already stated the said fact to the
police”.
G
13. In his deposition P.W.5 would state that on 9.7.2000 at about
8.00 p.m. while he was coming back, the appellant and the co-accused
met him. The appellant requested him with folded hands by taking him
into a side and told him that compromise be got effected with the
prosecutrix because he has committed wrong with her and the child in
her womb is his offspring. However, in cross examination he would H
state as follows:
964 SUPREME COURT REPORTS [2019] 3 S.C.R.
A “Witness Rattan Chand told me that the accused person want to
effect compromise with the prosecutrix. Accused Prakash Chand
had no talk with me regarding the aforesaid fact. Similarly, no
talk took place with me and accused Chakknu on the said fact. It
is correct that Rattan Chand told me about the compromise by
the accused person with the prosecutrix.”
B
14. There is admittedly a delay of 7 months in lodging the FIR in
the case of alleged rape. If the case is reported immediately apart from
the inherent strength of the case flowing from genuineness attributable
to such promptitude, the perceptible advantage would be the medical
examination to which the prosecutrix can be subjected and the result of
C such examination in a case where there is a resistance. It is the case of
the prosecution that she raised hue and cry and therefore apparently she
would have resisted. Possibly, a medical examination may have revealed
signs of any resistance or injuries. In this case the High Court has
proceeded on the basis of testimony of the prosecutrix and sought to
D fortify it by the extra judicial confession made before PW4 and PW5.
15. As far as PW 4 is concerned, his evidence is based on the
prosecutrix going to him on 05/07/2000 and revealing to him what had
happened allegedly in December 1999 whereas PW3, the maternal aunt
of the prosecutrix clearly says that after prosecutrix told her about the
E alleged rape and when PW4 came to visit the same village where his in-
laws also resides at that juncture on 07/07/2000, the factum of the alleged
rape was disclosed to him and he came to know on the said basis. This
is a completely different version from what PW4 has spoken. If PW3 is
to be believed, then knowledge about the alleged incident was gained by
P.W.4 only on 07/07/2000 and that too from PW3 instead he sets up the
F case that on 05/07/2000 the prosecutrix went to his house and told him
about the same. In fact, even the prosecutrix in her version has no such
case. Rather, the prosecutrix would say that the incident was disclosed
by P.W.3 to P.W.4. This completely falsifies the version of P.W.4 that
on 5.7.2000 the prosecutrix went and told him about the incident including
G about the threat of using the knife. P.W.4 as we have noted in further
cross examination would state that he did not tell the police on the basis
that she had not told him about it. This would again show that version of
P.W.4 that prosecutrix had went and told him about the incident, cannot
be believed. No doubt, P.W. 4 seeks to state that he did not tell the
Police about what the prosecutrix told him thinking that prosecutrix would
H
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 965
[K. M. JOSEPH, J.]
have told the police about it. It does not appear to be safe. In such A
circumstances, it may not be safe to draw support from the alleged
extra judicial confession alleged to have been made by the appellant to
him.
16. As far as P.W.5 who again has been believed by the courts,
we would notice that in the cross examination he categorically states B
that the appellant and also co-accused did not ask him for compromise.
This is contrary to his version that on the way back to his home on 09/
07/2000 he met him and he sought for a compromise. It is also to be
noted that PW 4 has stated in his cross examination that PW5 had met
him on 05/07/2000 along with the appellant. This is not considered by
the courts below. We have indulged in a closer look at the evidence in C
these proceedings having regard to the need to do so in view of the fact
that the complaint itself is lodged after 7 months. If the evidence adduced
by the prosecution falls short of the test of reliability and acceptability
and as such it is highly unreliable to act upon it even in an appeal by
special leave, such a critical examination may not be unwarranted. See D
decision of this Court in Ganga Kumr Srivastava v. State of Bihar
2005 (6) SCC 211. Also when vital evidence is not appreciated, this
Court can interfere. Furthermore, we notice that the trial court, in fact,
proceeded on the basis that the prosecutrix was not a minor. The High
Court finds on evidence that the prosecutrix was not a minor. Moreover,
we notice that the High court has found as follows: E
“16. ………On 18-8-2000, the prosecutrix was again brought and
was examined by him and the pregnancy of approximately 36
weeks was detected. There is nothing in the MLC that the
prosecutrix was habitual of sexual intercourse……”.
F
However, we find in Exhibit PE which is the MLC dated 18/08/
2000, it is clearly stated under the head ‘opinion’ as follows:
“The pt. is used to habitual sexual intercourse”
17. If we do not place confidence in the deposition of PW4 and
PW5 then the case would depend upon the credibility of PW2, the G
prosecutrix. The incident is alleged to have taken place near a path
which has been admitted by the prosecutrix and her aunt PW3 as common
path. If indeed the prosecutrix has raised hue and cry as in the case
reported in 2013 (9) SCC 113, it is very unlikely that the labourers who
are supposed to haunt the common path could not hear it. There is a
H
966 SUPREME COURT REPORTS [2019] 3 S.C.R.
A case of the appellant that the evidence would make out a case of
consensual sex. It is true that in the High Court, it is recorded that there
is no case of consensual sexual intercourse as such argued but we have
to decide the case on the basis of evidence. We would think in the
circumstances of this case that the appellant cannot be convicted for the
offence under Section 376. It would indeed be unsafe to convict him
B
based on the testimony of the prosecutrix. He would certainly be entitled
to the benefit of doubt which is created by the very circumstances which
we have referred.
18. As far as the charge against the appellant under Section 376
IPC is concerned, it reads as follows:
C
“That in the month of December 1999 at about 5/6 PM at village
Bhoga, you committed rape upon Kumari ……………at a place
one kilometer away from Dugli towards Bhoga and thereby
committed an offence punishable under Section 376 IPC and within
my cognizance;
D
And I hereby direct you accused be tried on the said charge by
this court.”
As far as the charge under Section 506 read with 34 IPC is
concerned, it reads as follows:
E “That on 10.7.2000 at village Bhoga, you alongwith your co-
accused in furtherance of common intention, criminally intimidated
Kumari ……….to do away with her life and thereby committed
an offence punishable under Section 506 IPC read with Section
34 IPC and within my cognizance;
F And I hereby direct you accused be tried on the said charge by
this Court.”
19. The trial Court, in fact, has proceeded to rely upon the testimony
of prosecutrix about the appellant threatening her that in case she discloses
the incident to anyone she will be killed by the accused. This apparently
G is related to the incident in December, 1999. In fact, the appellant was
specifically charged with criminal intimidation allegedly done on 10/07/
2000. The appellant was so charged in alleged furtherance of common
intention along with co-accused. The trial Court has also proceeded to
convict the co-accused relying on the evidence of the prosecutrix. The
High Court has acquitted the co-accused of the charge of criminal
H
PARKASH CHAND v. STATE OF HIMACHAL PRADESH 967
[K. M. JOSEPH, J.]
intimidation. We have noted that there is no specific charge even framed A
against the appellant under Section 506 in regard to the alleged incident
which took place in December, 1999 and the charge in fact relates only
to the acts alleged to have been committed on 10/07/2000. Apart from
the fact that there is no specific charge against the appellant in regard to
what happened in December, 1999, we are inclined to think that the
B
appellant could not be convicted under Section 506 having regard to the
circumstances which we have already discussed hereinbefore.
20. In such circumstances, the appeal is allowed. We set aside
the order of conviction and sentence of the appellant by the courts below.
As the appellant is on bail, the bail bonds of the appellant stands
discharged. C
Ankit Gyan Appeal allowed.
D
E
F
G
H
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