Holding

The High Court's reduction of the sentence was illegal for lack of adequate and special reasons, and although Section 377(3) does not apply to Article 136 appeals, analogous principles allow the accused to argue for acquittal, leading to his acquittal on the benefit of doubt.

Summary

The State of Rajasthan prosecuted Kishan Lal for rape under Section 376 IPC; the trial court sentenced him to seven years' rigorous imprisonment and a fine, which the Rajasthan High Court reduced to the period already served without recording adequate and special reasons. The State appealed to the Supreme Court under Article 136, challenging the legality of the reduction and seeking reinstatement of the statutory minimum sentence. The Court examined whether Section 377(3) of the CrPC applies to an Article 136 appeal and held that, although it does not strictly apply, analogous principles may be invoked, permitting the accused to argue for acquittal. On a detailed appraisal of the evidence, the Court found serious doubts about the prosecution's version and concluded that the benefit of doubt applied to the accused. Consequently, the High Court's reduction was declared illegal, but the accused was acquitted on the ground of doubt, and the appeal was dismissed.

Issues considered

The High Court's reduction of the sentence under Section 376 IPC without recording adequate and special reasons.
Whether Section 377(3) of the CrPC governs an appeal filed under Article 136 of the Constitution for enhancement of sentence.
Whether the accused may be permitted to argue for acquittal and claim the benefit of doubt in such an appeal.
Whether the evidence establishes non‑consensual intercourse sufficient for conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 373(3), s. 377(3)
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 376, s. 457

Subjects

rapesentence reductionSection 376 IPCSection 377 CrPCArticle 136benefit of doubtacquittalcriminal appealhigh court order

Judgment

A STATE OF RAJASTHAN
v.
KJSHAN LAL

MAYI0,2002

B [Y.K. SABHARWAL AND BISHESHWAR PRASAD SINGH, JJ.]

Penal Code, 1860 :

Secti~n 376-Rape-Conviction of accused by Trial Court-Reduction
C of sentence by the High Court-On appeal, Held: Since High Court has not
recorded any adequate or special reason for reducing sentence, the order of
the High Court not justified

Rape-Prosecution version-Truthfu/lness-ln doubt-Raising the
probabi!itf' that the prosecutrix was a consenting party-Hence respondent
D entitled to benefit of doubt and thus acuqitted.

Code of Criminal Procedure, 1973:

Section 373(3)-Applicability of-Appeal under Article 136 of the
Constitution on the ground of inadequacy of the sentence-Plea of acquittal-
E Raising of-Held, Supreme Court for the purpose of averting miscarriage of
justice, could adopt such analogous principles so as to make fair procedure
for disposing of such appeals and may allow respondent to raise such plea-
Constitution of India; Article, 136.

According to the prosecution, on the fateful day, prosecutrix's
F husband and brother~in-law had gone away and she was alone in the ...
house; her sister-in-law was sleeping in a nearby house. At night, when
the accused came to her house, she recognised him, and accused raped
her. In the meanwhile her husband and brother-in-law returned home to
whom she narrated the story. The accused tried to run away but her
G husband, brother-in-law and villagers caught him and kept him tied in
the house and handed him over to Police. The prosecutrix lodged FIR
next morning. Respondent-accused was charged and tried for offences
under Sections 376 and 457 l.P.C. Trial Court found the respondent-
accused guilty of the charges and sentenced him to rigorous imprisonment
for 7 years and I year respectively and also to pay fine. On appeal, High
H 1066
STATE v. KISHAN LAL 1067

Court reduced the sentence to the period already undergone by the A
accused. Hence this appeal by the State.

It was contended for the appellant-State thai High Court erred in
law in reducing the sentence to the period already undergone by the
accused which was not permissible in view of the express provisions of
Section 376 l.P.C.; that Section 377 of the Code of Criminal Procedure B
does not apply to an appeal before the Supreme Court under Article 136
of the Constitution of India; and that prosecutrix was not a consenting
party to the rape. •

It was contended for the respondent-accused that Supreme Court,
c
-
in exercise of its extra ordinary jurisdiction under Article 136 of the
Constitution of India, may apply the principle analogous to those enshrined
in Section 377 Cr.P.C.

Disposing of the appeal, the Court

HELD : I. Proviso to Section 376 IPC provides that the Court may, D
for adequate and special reasons to be mentioned in the judgment, impose
a sentence of imprisonment for a term of less than seven years. In the
instant case, the High Court has not recorded adequate or special reasons
for reducing the sentence to the period already undergone except for
stating that the respondent had remained in custody since the year 1988 E
and that in such cases Courts have taken a lenient vie\V. Such a statement
does not answer the description of adequate and special reasons which
\Vere required to be mentioned in the judgment. It is, therefore, patent
that the order reducing the sentence of the respondent is illegal and
cannot be sustained. f1070-D, E, Ff
F
2. It is no doubt true that the State has preferred the appeal
challenging the legality of the sentence. In that sense it is not an appeal
for enhancement of sentence on the ground of its inadequacy. However,
it is equally true that if the sentence is found to be illegal and set aside
and appropriate sentence imposed, it would result in the enhancement of G
the sentence. The only consequence of the State appeal being allowed
would be to enhance the sentence and, therefore, the appeal in effect is
for Cnhancement of the sentence of the respondent on the ground that the
sentence imposed against him is not in accordance with la\v, and not
adequate, since it is less than the minirnum sentence prescribed under the
law. f 1071-B, C, Of H
1068 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 3. The question which arises for consideration is whether this Court
should apply the principles enshrined in Section 377(3) of the Code of J.._ '
Criminal Procedure to an appeal filed under Article 136 of the
Constitution, before this Court for enhancement of sentence. This question
is no longer res integra and the respondent is entitled to argue for an
B acquittal in the appeal by adopting analogous principles as in Section
377(3) of Cr.P.C. 11071-E, F; 1072-El

State of UP. v. Dharmendra Singh and Anr., JT (1999) SC 207, relied
on.
,
i
4.1. It is rather surprising that when the accused entered the house
C of the prosecutrix at night and though the brother-in-law of the prosecutrix
and his wife were sleeping only 20-25 feet away, the prosecutrix could
not raise an alarm so as to attract their attention. It further appears that
the prosecutrix was known to the accused and the first question she
asked the accused was as to why he had come in the night. To this
D accused replied stating that he wanted to have sexual intercourse with
her. In the first Information Report as well as in the deposition of
Prosecutrix and her husband there is a mention of the fact that the
accused offered her Rs. 20 for having sexual intercourse with her and
also stated that a!l other person would also pay her the same amount for
having sexual inter-course with her. This is not disputed by the prosecutrix.
E This gives an impression that the prosecutrix and the respondent were
quite intimate. 11076-C, D)

4.2. The other surprising feature of the case is that the husband of
the prosecutrix after entering the house did not straightaway chase the
accused. He first questioned his wife as to whether she had called the
F accused and only after her stating that she had not called him and that
he had forcibly raped her, he started chasing the respondent and caught
him. This again probablises the fact that the husband also had at least
some suspicion about the nefarious activities of his wife, otherwise it
would be quite unnatural for a husband asking such questions from his
G wife, even before attempting to catch the accused. 11076-E, F)
4.3. According to the prosecutrix she was having sexual inter course
with the accused when her husband came, and it was her husband who
separated the accused from her. The husband of the prosecutrix has not
said so, though at one place he has stated that his wife was weeping
H when the accused was having sexual inter course with her. It appears
STATE v. Kl SHAN LAL [BISHESHWJ\R PRASAD SINGl-I, J.J 1069

that the prosecutrix was offering no resistance while the accused was A
--~ having sexual intercourse with her. The defence version is that it was
only when her husband entered the room that she started raising hue and
cry. This is countered by the State by stating that the respondent had
carried a knife with him and had threatened the prosecutrix with the
knife and, therefore, on account of fear, she could nor raise an alarm or B
resist the respondent; moreover accused had forced a handkerchief in
her mouth. It is indeed surprising that the knife has not been exhibited
in the trial, nor does it appear to have been seized in the course of
investigation. In the normal course the knife should have, been recovered
from the house of the prosecutrix. The non-seizure of the knife raises a
serious suspicion about the truthfulness of the prosecution version that C
the respondent had sexual intercourse with the prosecutrix under threat.
11076-G, H; 1077-A, B, CJ

5. Having regard to these features of the case, the probability of the
accused having had sexual intercourse with the prosecutrix with her
consent cannot be ruled out. In the facts and circumstances of the case, D
though the sentence imposed by the High Court was illegal, on the basis
of the evidence on record, the respondent is entitled to benefit of doubt.
11077-D, EJ

CRIMINAL APPELLATE JURISDICTION Criminal Appeal E
No. 516 of 1996.

From the Judgment and Order dated 26.4.91 of the Rajasthan High
Court in S.B. Cr!. A. No. 371 of 1990.

Ranji Thomas and Javed Mahmud Rao for the Appellant.
F
Alok Bhachawat (A.C.) for the Respondent.

The Judgment of the Court was delivered by

BISHESHWAR PRASAD SINGH, J. This appeal by special leave
preferred by the State of Rajasthan is directed against the judgment and order G
of the High Court of Rajasthan at Jaipur, Jaipur Bench, Jaipur dated 26th
April, 1991 in S.B. Criminal Appeal No. 371 of 1990.

By the i1nj:>ugned judgn1ent the High Court while conv1ct1ng the
respondent of the offence under Section 376 of the Indian Penal Code reduced
his sentence to the period already undergone. It appears that the respondent H
I
~

1070 SUPREME COURT REPORTS [2002] 3 S.C.R.

A had undergone a sentence of about 2Yi years when the impugned judgment
was passed. Earlier the learned Additional Sessions Judge, Baran, had found
the respondent guilty of the offences under Sections 376 and 457 IPC and
had sentence .him to undergo 7 years rigorous imprisonment under Section
376 IPC and a fine of Rs.. 500, in default to six months simple imprisonment.
He also sentenced him to I year rigorous imprisonment under Section 457
B IPC and a fine of Rs. 200, in default, 3 months simple imprisonment.

Since the respondent was un-represented before us, we requested Shri
Alok Bhachawat, Advocate, to assist us as an amicus curiae. He has rendered
very good assistance to the Court.

C At the outset counsel for the State submitted that the High Court clearly
erred in law in reducing the sentence passed against the respondent to the
period already undergone, which was impermissible in view of the expressed
provision of Section 376 IPC which mandates that on finding the accused
guilty of the offence under Section 376 IPC, in a case ?f th~s nature, the
D accused shall be sentenced for a term which shall not be less than 7 years but
which may be for life or for a term which may extend to I 0 years and shall
also be liable to fine. The proyiso to Section 376, however, provides that the
court may, for adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of less than seven years. In the
judgment the learned Judge has not recorded any adequate or special reasons
E for reducing the sentence to the period already undergone except for stating
that the respondent had remained in custody since the year 1988 and in such
cases courts have taken a lenient view. We have no doubt that such a statement
does not answer the description of "adequate and special reasons" which
were required to be mentioned in the judgment. Learned amicus curiae could
F not advance any argument to support the order of the High Court reducing
th.e sentence to the period already undergone. It is, therefore, patent that the
order reducing the sentence of the respondent is illegal and cannot be sustained.

Learned counsel for the respondent, however, submitted that the State
of Rajasthan has preferred, by special leave, the present appeal challenging
G the legality of the order sentencing the respondent to the period already
undergone and the. effect of the appeal being allowed is that the sentence of
the respondent may be enhanced to a minimum of 7 years. He, therefore,
submitted that this Court should permit the respondent to argue for an acquittal
since the appeal by special leave, for all practical purposes, is an appeal for
enhancement of the sentence. It is, therefore, submitted that this Court in
H exercise of its extra ordinary jurisdiction under Article 136 of the Constitution
I

~

•'
STATE v. KISHAN LAL [BISHESHWAR PRASAD SINGH. J.] 1-071
•'
of India 1nay apply the principle analogous to the one enshrined in Section A
377(3) of the Code of Criminal Procedure which in term provides that when
, an appeal is filed against the sentence on the ground of its inadequacy, the
accused while showing cause may plead for his acquittal or for the reduction
of the sentence.

Learned counsel for the State submitted that the appeal preferred by the B
State is not an appeal for the enhancen1ent of the sentence but for setting
aside an order passed by the High Court in1posing a sentence which is patently
illegal and contrary to the express 111andate of the provision. It is no doubt
true that the State has preferred the appeal challenging the legality of the
sentence.In that sense it is not an appeal for enhancement of sentence on the C
ground of its inadequacy. However, it is equally true that if the sentence is
found to be illegal and set aside and appropriate sentence imposed, it would
result in the enhancement of the sentence. The only consequence of the State
appeal being allowed would be to enhance the sentence and, therefore, we
are of the view that the appeal in effect is for enhancement of the sentence
of the respondent on the ground that the sentence imposed against him is not D
in accordance with law, and not adequate, since it is less than the minimum
sentence prescribed under the law.

The next question which arises for consideration is whether this Court
should apply the principles enshrined in Section 377(3) of the Code of Criminal
Procedure to an appeal before this Court for enhancement of sentence. E

Learned counsel for the State submitted that Section 377 of the Code
of Criminal procedure is applicable only to an appeal for enhancement of
sentence preferred before the High Court. In terms that section does not
apply to an appeal before the Supreme Court under Article 136 of the
F
Constitution of India for enhancement of sentence.

Learned an1icus curiae rightly submitted that this question is no longer
• res integra. In the State of UP. v. Dharmendra Singh and Anr., : JT 1999 (7)
SC 207 this Court considered Section 377(3) of the Code of Criminal Procedure
and observed, thus :- G
"A perusal of this Section shows that this provision is ap~licable
only when the matter is before the High Court and the sa111e is not
applicable to this Court when an appeal for enhancen1ent of sentence
J.
is made under Article 136 of the Constitution. It is to be noted that
an appeal to this Court in criminal matters is not provided under the H
1072 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Code except in cases covered by Section 379 of the Code. An appeal
to this Court under ArtiCle 136 of the Constitution is not the same as
a statutory appeal under the Code. This Court under Article 136 of
the Constitution is not a regular court of appeal which an accused can
approach as of right. It is an extraordinary jurisdiction which is
exercisable only in exceptional cases when this Court is satisfied that
B it should interfere to prevent a grave or serious miscarriage of justice,
as distinguished from mere error in appreciation of evidence. While
exercising this jurisdiction, this Court is not bound by the rules of
procedure as applicable to the courts below. This Court's jurisdiction
under Article 136 of the Constitution is limited only by its own
c discretion (See Nihal Singh and Ors. v. The State of Punjab, AIR
(I 965) SC 26). In that view of the matter, we are of the opinion that
Section 377(3) of the Code in terms does not apply to an appeal
under Article 136 of the Constitution ..

This does not mean that this Court will be unmindful of the
D principles analogous to those found in the Code including those under
Section 373(3) of the Code while moulding a procedure for the disposal
of an appeal under Article 136 of the Constitution. Apart from the
Supreme Court Rules applicable for the disposal of the criminal appeals
in this Court, the Court also adopts such analogous principles found .
in the Code so as to make the procedure a "fair procedure" depending
E on the facts and circumstances of the case".

This Court, therefore, permitted the respondents to argue for an acquittal
in the appeal preferred by the State of U.P. for enhancement of the sentence
by adopting analogous provision found in Section 377 (3) of the Code of
Criminal Procedure.
F
Learned amicus curiae submitted that in exercise of jurisdiction under
Article 136 of the Constitution of India, this Court has set up judicious
precedents for the purpose of averting miscarriage of justice and that is why
in some cases where the Court reached the conclusfon that no conviction of
G any accused is possible, the benefit of that decision was extended to the co-
accused, also though he f!!ay not have challenged the order by nieans of an
appeal petition to this Court. (See Raja Ram and Ors. v. State of M.P. :
[1994] 2 SCC 568 and Dandu Lakshmi Reddy v. Stale of A.P. : [I 999] 7 SCC
69.)

H Learned amicus curiae submitted that this is an appropriate case where
I
~

STATE v. KISHAN LAL [BISHESHWAR PRASAD SINGH. J.] 1073

he should be permitted to argue for the acquittal of the respondent and we A
permitted him to do so.

With the assistance of learned counsel appearing for the parties, we
have gone through the record placed before us and we have carefully
scrutinized the testimonies of the witnesses examined at the trial.
B
The prosecution was initiated by the lodging of a First Information
Report by Smt. Dhulibai, prosecutrix at P.S. Chheepa Barad on the morning
of 8th December, 1985. She reported that last night her husband Chhitarlal,
PW. 11 alongwith his brother Ram Dayal, PW.2 had gone to witness the
Ramlila. She was alone in the house. Her brother-in-law's wife was sleeping
in the other house. While going to· Ram Ii la her husband had bolted the house C
from outside. At about 11-12 ·O' clock at night she' woke up as someone
opened the door. She recognized the respondent Kishanlal and asked him as
to why he had come. He said that he had come to have sexual intercourse
with her. He put off the chimney (oil lamp). She started crying but the
respondent inserted a piece of cloth in her mouth. He pressed her breasts and D
in the scuffle 2 buttons of her blouse were broken. Thereafter he had sexual
intercourse with her. He then said that he will give her Rs. 20 and will also
call Phelia for the same purpose. At about that time her husband and brother-
in-law returned home. She narrated the story to her husband. Respondent
Kishanlal who was present in the house tried to run away but her husband
and brother-in-law and some other persons of the village ran after him. The E
respondent fell on the stones and injured himself. He was, however, caught
and kept tied in the house. Since they could not come to the police station
in the night, they catne to report the matter next morning.

The case was investigated by PW.7 Shyamlal, Station House Officer of F
Police Station Chheepa Barad. He prepared the site plan, seized the clothes
of the prosecutrix and the respondent which were sent for the report of the
Chemical Analyser. He arrested respondent Kishanlal on 12th December,
1985 even though he was produced before him on 8th December, 1985
because during this period he was undergoing treatment in the hospital. There
were injuries on the head and body of the accused. G
From the suggestions made to the witnesses it appears to be the defence
of the respondent-accused Kishanlal that PW.12 Dhulibai, prosecutrix was a
~- consenting party. Apart from the fonnal witnesses such as the panch witnesses
PW.4 & PW.6 and PW.18, who had carried the articles to the Forensic
Science Laboratory, the prosecution has examined the husband of the H
1074 SUPREME COURT REPORTS [2002] 3 S.C.R.

A prosecutrix Chhitarlal as PW.I I and prosecutrix Smt. Dhulibai u.s PW.12 and
four witnesses, namely, Kanhiyalal, PW. I ; Ramdayal, PW.2 and Radhakishan
PW.3 and Balchand, PW.4, who arrived at the house of the prosecutix soon
after the occurrence.

The case of the prosecution is that PW. I I Chhitarlal, husband of the
B prosecutrix came first followed by PW.2 Ramdayal who came 2-3 minutes
later. PW .3 and PW.4 came at a stage when the respondent had been
apprehended and.tied up.

Having regard to the defence of the respondent it would be necessary
C to critically scrutinize the evidence of PW. I I and PW. 12, namely, Chhitarlal,
husband of the prosecutrix and the prosecutrix herself. Chhitarlal, PW. I I
stated that he knew accused Kishanlal. On the night of occurrence when he
returned home, he found the doors of the house open and could hear the
female child 2 'lz years old weeping. His wife Dhulibai told him that Kishanlal
had raped her. At that time Kishanlal was in the house. After hearing his
D voice Kishanlal started running away but he chased him and caught him in
the house itself. On the next morning he alongwith his wife went to the
police station and lodged the report.

In cross-examination he stated that he came to his house first and his
brother Ramdayal, PW.2 came 2-3 minutes later. Respondent Kishanlal was
E of another village and the distance between his village and the village of the
respondent is nearly one mile. He used to come to his village quite frequently.
He denied the suggestion that he had assaulted the ~ccused and stated that the
injuries were sustained by him by his falling on the stones. He categorically
denied the suggestion that the accused was caught outside the house. He had
F called the Sarpanch in the night and apart from him, large number of persons
who had gone to Ramlila had also come. His wife had told them about the
misdeeds of the respondent. Next morning at about 9 to 10 O'clock a report
was lodged. He denied the suggestion that accused used to come to his house
even on earlier occasions. He stated that his wife did not tell him that the
accused had told her that he will bring another person for the same deed and
G that she will be paid for that. The distance between his house and that of his
brother is about 30 feet. He further stated that his wife was weeping when
she was sexually assaulted. He asked his wife whether the accused had done
so with her consent or without her consent and she had replied that she had
not consented, and that it was done forcibly.

H Smt. Dhulibai, PW.12, prosecutrix stated that she knew the accused.
'
~

STATE v KISHAN LAL fBISHESHWAR PRASAD SINGH, J.] 1075

On the night of the occurrence her husband had gone to watch the Rarnlila A
after bolting the outer doors. She was sleeping with her 5-6 months old child
and her brother-in-law was sleeping in his roon1 alongwith his wife nearly
20-25 feet away. At about 10-12 O'clock in the night, the accused entered
her house whom she. recognized in the :ight of the chimney. On being a~ked
as to why he had come in the night, the accused replied that he had come to B
have sexual intercourse with her. He broke the buttons of her blouse. He
pressed her breasts and caused abrasions by his nails on her breasts. In the
meantime the child got up and started weeping. He slapped her. It is further

- stated that when she cried, he put a handkerchief in her mouth. When she
continued to cry, the accused had shown her a knife and threatened her that
he will stab her if she makes noise. She also stated that he told her that he
will give her Rs. 20 but did not give the money. He had sexual intercourse
C

with her. In the meantime her husband came .Her husband asked her as to
whether she had called him, and she replied in the negative. When the accused
started running away, her husband caught him. After sometime her brother-
in-\aw Ramdayal also came. They caught the accused and tied him up. Next
morning they went to the police station and lodged the report. D
°' In her cross-examination she admitted that she knew the accused for
about 6 months before the incident. But she denied the suggestion that accused
used to come to her house very often. The handkerchief that was inserted in
her mouth was seized by the police. She had been medically examined. E
She then stated that when her husband came inside the house, the
accused was actually having intercourse with her. The bolts of the doors were
left open after the accused had come inside. It was her husband who removed
the accused from her body. Ramdayal, PW.2 came later. The accused was
caught by her husband in the house itself. She denied that he was caught near p
the stones and stated that the statement recorded by the police in the course
of the investigation that he fell on the stones after dashing against it was
wrong. According to her the accused was not beaten by anyone. She denied
the suggestion that all this happened with her consent and that she had called
the accused. She, however, admitted that the accused had told her that he will
give her Rs. 20 and that Rs. 20 will be given by Phulia for the same favour. G
She denied the suggestion that she started shouting only after seeing the
persons coining inside the house. According to her, after the respondent was
tied, he started dashing against the stones as a result of which he sustained
injuries. She denied the suggestion that her husband had caused the abrasions
on her breasts. H
1076 SUPREME COURT REPORTS [2002) 3 S.C.R.

A The medical officer of the Family Health Center, PW.9, who examined. ,_
the prosecutrix stated that he had found two abrasions on the breasts I cm
x I cm. which were caused within 24 hours of the examination. He confirmed
the fact that Dhulibai had been raped. He had also examined the accused and
found that he was capable of having sexual intercourse. He, however, stated
that the prosecutrix appears to have had intercourse with her husband and the
B injuries on the private parts could be caused in the course of intercourse. He
also stated that the abrasions on the breasts of the prosecutrix could be self
inflicted.

It is rather surprising that the accused entered the house at night and
C though the brother-in-law of the prosecutrix and his wife were sleeping only
20-25 feet away, the prosecutrix could not raise. alarm so as to attract their
attention. It further appears that the prosecutrix was known to the accused
and that is why the first question. asked. by her was as to why he had come
in the night. To this the accused replied stating that he wanted to have sexual
intercourse with her. In the First Information Report as well as in the deposition
D of Dhulibai, prosecutrix and Chhitarlal, PW. I I there is a mention of the fact
that the accused offered her Rs. 20 for having sexual intercourse with her and
also stated that one Phulia will also pay her the same amount for having
sexual intercourse with her. This is not disputed by the prosecutrix. This
gives an impression that the prosecutrix and the respondent were quite intimate.
E The other surprising feature of the case is that the husband of the prosecutrix
after entering the house did not straightaway chase the accused. He first
questioned his wife as to whether she had called him, and only after her
stating that she had not called him and that he had forcibly raped her, he
started chasing the respondent and caught him. This again probablises the
fact that the husband also had at least some suspicion about the nefarious
F activities of his wife, otherwise it would be quite unnatural for a husband
asking his wife, even before attempting to catch the accused, as to whether
she had called him, and whether the accused had sexual intercourse with her
consent.
-
There is yet another aspect of the matter. According to the prsoecutrix
G she was having sexual intercotJrse with the accused when her husband came.
According to her, it was her husband who separated the accused from her.
The husband of the prosecutrix has not said so, though at one place he has
stated that his wife was weeping when ·the accused was having sexual
intercourse with her. It appears that the ·prosecutrix was offering no resistance
H while she was having sexual intercourse, when suddenly her husband entered
I
;,..,

STATE v. KISHAN LAL [BISHESHWAR PRASAD SINGH. J.] 1077
the room. It was, therefore, contended on behalf of the respondent that it was A
· only when her husband entered the room, she started raising hue and cry. It
was sought to be argued on behalf of the State that the respondent had carried
a knife with him and had threatened the prosecutrix with the knife and,
therefore, on account of fear, she could not raise an alarm or resist the
respondent. In addition he had forced a handkerchief in her mouth. ft is B
indeed surprising that the knife has not been exhibited in the trial, nor does
• it appears to have been seized in the course of investigation. If the respondent

-
had brought a knife with him, and it is the prosecution case that he was
caught hold of within the precincts of the house itself, he had obviously no
opportunity of throwing away the kn'ife. In the nonnal course the knife should
·.have been recovered from the hobse of the prosecutrix. The non-seizure ';Jr C
the knife raises a serious suspicion about the truthfulness of the prosecution
version that the respondent had sexual intercourse with the prosecutrix under
threat.

Having regard to these features of the case, the probability of the accused
having had sexual intercourse with the prosecutrix with her consent cannot D
- ... be ruled out. The features that we have noticed above probablise the defence
of the respondent, and we entertain serious doubt about the truthfulness of
the prosecution case that the acwsed had sexual intercourse with the
prosecutrix without her consent.

In the facts and circumstances of the case, we are of the view that the E
respondent is entitled to the benefit of doubt. In the result this appeal is
disposed of with a finding that though the sentence imposed by the High
Court was illegal, having considered the evidence on record, we are satisfied
that the respondent is entitled to the benefit of doubt. The appeal is, therefore,
dismissed and the respondent is· acquitted of all the charges levelled against F
liim. The bail bonds of the respondent are discharged.

- We have appreciated the efforts put iri by Shri Alok Bhachawat,
Advocate, who has _rendered useful assistance to the Court. He shall be paid
the prescribed fee payable to an amicus curiae as per the rules.
G
S.K.S. Appeal disposed of.