STATE (GOVT. OF NCT OF DELHI) versus PANKAJ CHAUDHARY AND ORS.

ASTATE (GOVT. OF NCT OF DELHI)

PANKAJ CHAUDHARY AND ORS.

(Ciminal Appeal No. 2299 of 2009)

BOCTOBER 30, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s.376(2)(g) – Case of the prosecutionthat accused-respondents, living in the neighbourhood of theprosecutrix entered her jhuggi on 28.07.1997 at about 9.00 pmCand raped her – Trial court convicted the respondents – High Courtset aside the conviction and issued directions to lodge complaintagainst the police officials for fabricating false case against therespondents – Plea of respondents that Prosecutrix was of badcharacter and indulged in prostitution and since they lodgedDcomplaint against her, therefore, they were falsely implicated – Held:Trial Court which had the opportunity of observing the prosecutrix,found the testimony of the prosecutrix reliable being corroboratedby her mother’s evidence, medical evidence, FSL report and othercircumstances viz. absence of motive for any false implication etc.– Reasoning of the High Court that the prosecutrix along with someEladies was arrested in connection with an FIR No.558/97 (registeredregarding quarrel at 07.30 pm on 28.07.1997 involving sexworkers including the prosecutrix) and that the ladies must haveremained with the custody of police till 09.20pm, proceeds onpresumptive footing and surmises – Evidence of DWs 1 and 2 clearlyFshow that the prosecutrix was let out by the police at or about 08.20pm on 28.07.1997 – High Court failed to appreciate their testimonies– Mere fact that FIR No.558/97 was registered at 09.20pm does notindicate that the prosecutrix and other quarrelling ladies were inthe police custody till 09.30 pm on 28.07.1997 (with respect to theoffence in the said FIR) – Placing of heavy reliance by the HighGCourt upon the contents in FIR No.558/97 was not correct – HighCourt erred in taking into consideration the materials producedbefore the appellate court viz., the alleged complaints made againstthe prosecutrix and other women alleging that they were engagedin prostitution – Even assuming that the prosecutrix was of easy

virtue, she has right to refuse to submit herself to sexual intercourseto anyone – Further, without hearing the police officials and basedon the materials produced as additional evidence, High Court wasnot right in issuing direction to lodge complaint against the policeofficials – Judgment of the High Court set aside – Conviction of therespondents affirmed.

Code of Criminal Procedure,1973 – s.391 – Power under –Scope of – Discussed.

Code of Criminal Procedure,1973– s.340– Pre-conditions forinitiating proceedings under – Discussed.

Evidence – Rape – Sole testimony of the prosecutrix –Appreciation of – Discussed.

Disposing of the appeals, the Court

HELD : 1.1 Evidence of the prosecutrix is corroboratedby the MLC. The evidence of the prosecutrix is also corroboratedby FSL Report which shows presence of human semen on thepetticoat of the prosecutrix. [Paras 13, 15][87-F; 88-C]

1.2 The prosecutrix had no motive to falsely implicate theaccused. In their statement under Section 313 Cr.P.C., therespondents/accused have stated that the prosecutrix was of badcharacter and she was indulging in prostitution regarding whichthey have lodged complaint against her and they have been falselyimplicated in the case. As pointed out by the trial court, nothingwas brought on record by the accused to show that they havelodged complaint against the prosecutrix. DW-1, the Presidentof the jhuggi area stated that about 7-8 women including theprosecutrix have been indulging in prostitution regarding whichhe has lodged the complaint. There is nothing on record tosuggest that the accused were in any way involved in makingsuch complaints against the prosecutrix and other women. Theversion that they lodged complaint against the prosecutrix andtherefore, they have been falsely implicated in the case, is notsubstantiated by any record. [Para 20][90-C-E]

1.3 The power conferred under Section 391 Cr.P.C. is tobe exercised with great care and caution. In dealing with anyappeal, the appellate court can refer to the additional evidence

Aonly if the same has been recorded as provided under Section391 Cr.P.C. Any material produced before the appellate court tofill-up the gaps by either side cannot be considered by theappellate court; more so, to reverse the judgment of the trialcourt. The High Court took into consideration the materialsproduced by the Bar, namely, complaints allegedly made againstBthe prosecutrix and other women including the one allegedly givenon 21.07.1997 just one week prior to the incident. The High Courtwas not right in taking into consideration those complaintsproduced at the time of arguments in the appeal. Even if theallegations of the accused that the prosecutrix is of immoralCcharacter are taken to be correct, the same does not give anyright to the accused persons to commit rape on her against herconsent. Even woman of easy virtue is entitled to privacy andit is not open to any person to violate her and she is equallyentitled to protection of law. Further, the evidence of such

woman cannot be thrown overboard merely because she is aDwoman of easy virtue. [Paras 21, 22][90-G-H; 91-A-C]1.4 Even in cases where there is some material to showthat the victim was habituated to sexual intercourse, no inferencelike the victim being woman of ‘loose moral character” ispermissible to be drawn from that circumstance alone. womanEof easy virtue also could not be raped by person for that reason.While so, the High Court erred in placing reliance upon thecomplaints allegedly made against the prosecutrix to doubt herversion and to hold that false case has been foisted against theaccused. Conviction can be sustained on the sole testimony ofFthe prosecutrix if it inspires confidence. There is no rule of lawor practice that the evidence of the prosecutrix cannot be reliedupon without corroboration and as such it has been laid downthat corroboration is not sine qua non for conviction in rapecase. If the evidence of the victim does not suffer from any basicinfirmity and the ‘probabilities factor’ does not render it unworthyGof credence, as general rule, there is no reason to insist oncorroboration except from medical evidence, where, having regardto the circumstances of the case, medical evidence can beexpected to be forthcoming. [Paras 23, 24][91-D, F-H; 92-A-B]1.5 The trial court which had the opportunity of seeing andobserving the prosecutrix, found the testimony of the prosecutrixreliable being corroborated by her mother’s evidence, medicalevidence, FSL report and other circumstances viz. absence ofmotive for any false implication etc. The High Court failed toappreciate the testimonies of DWs 1 and 2 who categorically statedthat the prosecutrix had come back and was abusing neighbours.The evidence of DWs 1 and 2 clearly shows that the prosecutrixwas let out by the police at or about 08.20 PM on 28.07.1997.Mere fact that FIR No.558/97 under Section 160 IPCwas registered at 09.20 PM does not indicate that the prosecutrixand other quarrelling ladies were in the police custody till09.30 PM on 28.07.1997 (with respect to the offence inFIR No.558/97). [Paras 25, 29 and 30][92-B-C; 93-H; 94-A-B]

1.6 There were two sets of persons and two sets of officersinvolved in FIR No.558/97 and FIR No.559/97. The aspectregarding FIR No.558/97 was not put to the witnesses even beforethe trial court. Everything was brought about in appeal asadditional evidence in exercise of the power of the appellate courtunder Section 391 Cr. P.C. Placing of heavy reliance by the HighCourt upon the contents in FIR No.558/97 was not correctapproach. Unfortunately, the High Court was swayed by theDepartmental Enquiry Report prepared by Joint Commissionerof Police. The High Court was not right in placing heavy relianceupon the report of the Joint Commissioner and the report ofDeputy Commissioner who were not examined before the court.[Paras 31, 32 and 33][94-C-D, H]

1.7 Based upon the report of Joint Commissioner of Policeand the report of the DCP, the High Court made disparagingremarks against the police officials and directed prosecutionagainst the police under Sections 193 and 195 IPC. The policeofficials were neither party nor summoned by the High Courtbefore making such disparaging remarks and giving directionsagainst them in the appeal against the conviction. Any disparagingremarks and direction to initiate departmental action/prosecutionagainst the persons whose conduct comes into considerationbefore the court would have serious impact on their official career.Since the High Court had passed strictures against the police

Aofficials who were involved in the investigation inFIR No.559/1997 without affording an opportunity of hearing tothem, the disparaging remarks are liable to be set aside.[Paras 34, 36][95-A-B, D; 97-D]

1.8 The object of Section 340 Cr.P.C. is to ascertain whetherBany offence affecting administration of justice has been committedin relation to any document produced or evidence given in courtduring the time when the document or evidence was in custodianlegis and whether it is also expedient in the interest of justice totake such action as required under Section 340 Cr.P.C. Beforedirecting the prosecution to be initiated under Section 195 Cr.P.C.,Cthe court has to follow the procedure under Section 340 Cr.P.C.and record finding that “it is expedient in the interest ofjustice……..”. Though wide discretion is given to court underSection 340 Cr.P.C., the same has to be exercised with care andcaution. To initiate prosecution under Section 195 Cr.P.C tooDreadily that too against the police officials who were conductingthe investigation may not be correct approach. There are twopreconditions for initiating proceedings under Section 340 Cr.P.C.- (i) materials produced before the court must make out aprima-facie case for complaint for the purpose of inquiry into anoffence referred to in clause (b)(i) of sub-section (1) ofESection 195 Cr.P.C. and (ii) it is expedient in the interests ofjustice that an inquiry should be made into the alleged offence.[Paras 37-39][97-E-H; 98-F-G]1.9 Prosecution for perjury be sanctioned by the courts onlyin those cases where perjury appears to be deliberate andFprosecution ought to be ordered where it would be expedient inthe interest of justice to punish the delinquent and not merelybecause there is some inaccuracy in the statement. The HighCourt has not recorded finding that “it is expedient in the interestof justice to initiate an inquiry into the offences punishable underGSections 193 and 195 IPC against the police officials and underSection 211 IPC against the prosecutrix”. Without affording anopportunity of hearing to the police officials and based on thematerials produced before the appellate court, the High Courtwas not right in issuing direction to the Registrar General tolodge complaint against the police officials and the said directionHis set aside. [Paras 41, 42][100-E-F; 101-C-D]

Amarsang Nathaji as himself and as karta and managerv. Hardik Harshadbhai Pateland Others (2017) 1 SCC113 : [2016] 12 SCR 80 ; Chajoo Ram v. Radhey Shyamand Another (1971) 1 SCC 774 : [1971] Suppl. SCR 172 – relied on.

State of Maharashtra and Another v. MadhurkarNarayan Mardikar (1991) 1 SCC 57 ; State of Punjabv. Gurmeet Singh and Others (1996) 2 SCC 384 : [1996]1 SCR 532 ; Vishnu alias Undrya v. State ofMaharashtra (2006) 1 SCC 283 ; State v. N.K. Theaccused (2000) 5 SCC 30 : [2000] 2 SCR 818 ;S.K. Viswambaran v. E. Koyakunju and Others (1987)2 SCC 109 ; Manish Dixit and Others v. State ofRajasthan (2001) 1 SCC 596 : [2000] 4 Suppl. SCR 74 ;Chintamani Malviya v. High Court of Madhya Pradesh(2018) 6 SCC 151 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 2299 of 2009.

From the Judgment and Order dated 05.05.2009 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 384 of 2000.

With

Criminal Appeal No. 2298/2009

AVikramjit Banerjee, ASG, Mukul Gupta, Sanjay R. Hegde,Ms. Kiran Suri, Sr. Advs., Satya Mitra Garg, Sumit Kr. Mishra, TusharGupta, Dipanshu Panwar, Ms. Manju Aggarwal, Sudhadhar Kumar,Hrishikesh Baruah, Ms. Radhika Gupta, Siddhant K., P. K. Dey, PranayRanjan, B. V. Balaram Das, Praveen Chaturvedi, Ms. Jyoti Chaturvedi,Ms. Addya Mishra, Advs. for the appearing parties.B

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1. These appeals arise out of the judgment dated 05.05.2009 passedby the High Court of Delhi in Criminal Appeal No.384 of 2000 in and byCwhich the High Court allowed the appeal filed by the respondents/accusedthereby setting aside their conviction under Section 376(2)(g) IPC passedby the trial court and the sentence of imprisonment imposed upon them.By the impugned judgment, the High Court also issued direction to lodgea complaint against the appellants-police officials (CA No.2298/2009)Dfor prosecuting them under Sections 193 and 195 IPC.2. Case of prosecution is that the accused/respondents who wereliving in the neighbourhood of the prosecutrix (PW-1) at Shaheed BhagatSingh Jhuggi Camp, Katwaria Sarai, entered her jhuggi at about 09.00PM on 28.07.1997 and demanded bidi from her. She refused to giveEthem any bidi. Thereafter, they demanded water which she again refused.The prosecutrix has alleged that thereafter respondents/accused switchedoff the electricity and accused/respondent No.2 Gunjesh Chaudharycaught hold of her hands and the other three accused had torn her clothesand committed rape on her in turn. The prosecutrix has alleged that sheraised an alarm and fell unconscious thereafter. On hearing the alarm,FBashira Khatoon, mother of the prosecutrix (PW-3) came there andsaw the four accused/respondents coming out of the jhuggi. BashiraKhatoon (PW-3) found the prosecutrix lying unconscious inside the jhuggi.Police Control Room (PCR) van took the prosecutrix to All India Instituteof Medical Sciences (AIIMS) hospital. At about 11.45 PM, theGprosecutrix was medically examined by Dr. Monika and it was noted inMLC (Ex.-PW6/A) that there were “bruises of 4 x 4 cm on medialaspects of both thighs of the prosecutrix”. The blouse of theprosecutrix was found torn in the back side along the left sleeve.

3. At about 09.30 PM, information was received in the PoliceStation, Hauz Khaz PCR/South District regarding some quarrel atH

Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along withConstable Khushi Ram (PW-4) reached the spot and learnt that theprosecutrix was taken to the hospital by PCR Van. SI Jai Bhagawan(PW-7) along with the constable went to the AIIMS and found PW-1Phoola (Prosecutrix) there. Doctor declared PW-1 fit to make statementand SI Jai Bhagwan recorded her statement concerning allegations ofrape by the accused/respondents. The statement of the prosecutrix wasrecorded at 02.30 AM on 29.07.1997 and ruqqa for registration of thecase under Section 376 IPC was sent at 02.50 AM. case under FIRNo.559/97 under Section 376 IPC read with Section 34 IPC wasregistered at 03.15 AM on 29.07.1997.

4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, theprosecutrix was medically examined by Dr. Monika. It was noted in theMLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on themedial aspects of both the thighs of the prosecutrix. The blouse wastorn along the back of the left sleeve and at the time of preparing theMLC (Ex.-PW6/A); the clothes of prosecutrix could not be sealed sinceshe did not have spare clothes. Later her petticoat was collected andsent for chemical examination. Upon completion of investigation, chargesheet was filed against the accused/respondents.

5. Charges were framed against the accused/respondents underSection 376(2)(g) IPC to which they pleaded not guilty. To bring homethe guilt of the accused, the prosecution examined seven witnesses andexhibited number of documents. The accused/respondents in theirstatement under Section 313 Cr.P.C. stated that PW-1-Prosecutrix wasof bad character and she was indulging in prostitution and they havelodged complaint against her and therefore, they have been falselyimplicated in the rape case.

6. Upon consideration of evidence of PW-1-Prosecutrix andmedical report, forensic report and other evidence, the trial courtconvicted accused/respondents under Section 376(2)(g) IPC andsentenced each of them to undergo rigorous imprisonment for ten years.Being aggrieved, the accused/respondents filed appeal before the HighCourt. In the High Court, the accused/respondents filed petition underSection 391 Cr.P.C. for taking additional evidence which was allowedby the High Court. The High Court by the impugned judgment allowedthe appeal by setting aside the conviction of the accused/respondentsunder Section 376(2)(g) IPC. The High Court held that regarding the

Aladies quarrel at 07.30 p.m. on 28.07.1997 involving sex workers includingthe prosecutrix at Shaheed Bhagat Singh Jhuggi, FIR No.558/97 wasregistered and in connection with the said FIR No.558/97, the prosecutrixand other ladies were arrested and that they were in custody with thepolice till at least 09.30 PM. The High Court therefore doubted theprosecution case in FIR No.559/97 and held that when the prosecutrixBand other ladies were in custody with the police between 08.50 PM till10.00 PM on 28.07.1997, it is quite impossible that the occurrence ofrape would have taken place at 09.00 PM on 28.07.1997 as alleged bythe prosecutrix.

7. Based upon the Report of Joint Commissioner (Ex.-DW6/A)Cand the Report of DCP, the High court directed the Registrar General ofthe High Court to make complaint against SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-5)before the concerned court for prosecution for the offences underSections 193 and 195 IPC. Being aggrieved by the remarks made againstDthem and also the direction to lodge complaint to initiate prosecutionagainst them, SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) andHead Constable Sagar Chand (DW-5) have preferred Criminal AppealNo.2298 of 2009.

8. The learned Additional Solicitor General Mr. Vikaramjit BanerjeeEappearing on behalf of appellant Govt. of NCT of Delhi has submittedthat the High Court has failed to appreciate the evidence of PW-1-Prosecutrix which is corroborated by the medical evidence and the HighCourt erred in relying upon the events in FIR No.558/97 and erred inacquitting the respondents/accused. The learned Additional SolicitorGeneral further submitted that the High Court erred in relying upon theFreport of the Joint Commissioner (Ex.-DW6/A) and other materialsproduced at the time of arguments and the High Court ought not to haveproceeded on presumption and conjectures and erred in not appreciatingthe evidence and materials placed on record.

9. The learned senior counsel Mr. Mukul Gupta and Mr. SanjayGR. Hegde appearing for the appellants-police have taken us through theevidence and other materials and submitted that the police officials havecorrectly investigated the case and without giving an opportunity ofhearing, the High Court was not right in passing disparaging remarksagainst the police officials and issuing directions to lodge complaintHagainst the appellants-police officials to initiate the prosecution under

Sections 193 and 195 IPC which have very serious consequences andimpact on their official career.

10. Though the accused initially engaged lawyer, in later hearingsof the appeal, they were not represented. Mr. Praveen Chatruvedi wasnominated as the counsel for the respondents through Supreme CourtLegal Services Committee who made meticulous submissions. Contentionof the respondents/accused is that PW-1-Prosecutrix was in custody ofpolice between 08.50 PM to 10.00 PM on 28.07.1997 in connection withFIR No.558/97 under Section 160 IPC and therefore, the alleged offenceof gang rape (FIR No.559/97) could not have been committed by therespondents/accused in the manner alleged. It is the contention of therespondents/accused that the police and prosecutrix have conspired aplot of false rape case implicating the respondents and the High Courtrightly acquitted the accused/respondents and directed to initiate actionagainst the police.

11. We have carefully considered the submissions of therespondents/accused and also the appellant/police officials and perusedthe impugned judgment and materials on record.

12. PW-1-Prosecutrix has spoken about the occurrence of rapecommitted on her that accused/respondent No.2-Gunjesh Chaudharycaught hold of her hands and that other three accused namely PankajChaudhary, Qasim and Jai Lal Yadav had torn her blouse and committedrape on her and that she raised alarm and then her mother came thereand the accused persons ran away. Upon consideration of evidence ofthe prosecutrix, the trial court held that there is no reason to disbelievethe statement of prosecutrix where it is sufficiently corroborated by thestatement of Bashira Khatoon, mother of prosecutrix (PW-3) who sawthe accused leaving the jhuggi and identified two of them in the court.

13. Evidence of the prosecutrix is corroborated by the MLC(Ex.-PW6/A). Dr. Monika who examined the prosecutrix noted in MLC(Ex-PW6/A) that “the blouse of the prosecutrix was found to be tornalong the back of the left sleeve and bruises measuring 4 × 4 cmwere found on her both thighs”.

14. Contention of the respondents is that when the prosecutrixwas forcibly held by the accused and gang raped, in all probability, theprosecutrix must have sustained external injuries and absence of externalinjuries raises serious doubts about the prosecution version. The

Asubmission of the accused/respondents that the prosecutrix was notinjured, was belied by the presence of bruises measuring 4 × 4 cm on themedial aspects of both the thighs. The blouse was torn along the backof left sleeve and such injuries were possible by use of force. Further,the version of the prosecutrix is corroborated by MLC(Ex.-PW6/A)and that the injuries found could be possible by use of force. In anyBevent, absence of external injuries does not tantamount to consent nordoes it discredit the version of prosecutrix.

15. The evidence of the prosecutrix is also corroborated by FSLReport (Ex.-PW7/G) which shows presence of human semen (Ex.-1)on the petticoat of the prosecutrix. As per the FSL Report (Ex.-PW7/CG), blood was detected on Exhibits 3S1 (gauze cloth piece having brownstains labelled ‘Pankaj’); 3S2 (gauze cloth piece having brown stainslabelled ‘Qasim’); and 3S3 (gauze cloth piece having brown stains labelled‘Jai Lal’). The result of the biological report reads as under :-

ExhibitsSpecies of ABO Group Origin Remarks 3S1 (gauze cloth piece having brown stains Inconclusive labelled ‘Pankaj’) 3S2 (gauze cloth piece having brown stains Inconclusive labelled ‘Qasim’)3S3 (gauze cloth piece having brown stains ‘B’ Group labelled ‘Jai Lal’)Semen Status (Ex.-1-petticoat of the ‘B’ Group prosecutrix)

The presence of semen status of ‘B’ group on the petticoat of theprosecutrix which matches with the blood ‘B’ group of accused Jai LalF(3S3) corroborates the version of the prosecutrix. Of course, the SerologyReport on Exhibits 3S1 (gauze cloth piece having brown stains labelled‘Pankaj’); 3S2 (gauze cloth piece having brown stains labelled ‘Qasim’)remained inconclusive; probably due to disintegration of the sample. Suchdisintegration of the sample does not dilute the version of the prosecutrix.

16. The FSL Report (Ex.-PW7/G) was discarded by the HighCourt primarily on the ground that in MLC (Ex.-PW6/A), it is stated that“the clothes could not be sealed as patient does not have extraclothes” which according to the High Court was inconsistent with thestatement of SI Jai Bhagwan (PW-7) that “Duty Constable of the

hospital produced before me two sealed parcels containing petticoatand slides which was sent to the FSL”. It is pertinent to note that theprosecutrix was examined by the doctor at 11.45 PM on 28.07.1997;whereas SI Jai Bhagwan (PW-7) after getting statement from the doctoras to the fit mental state of prosecutrix has recorded the statement ofthe prosecutrix at 02.30 AM on 29.07.1997. In her evidence duringcross-examination, the prosecutrix has stated that the petticoat that shewas wearing at the time of incident was seized by the police. Havingregard to the evidence of the prosecutrix, we find no inconsistencybetween MLC (Ex.-PW6/A) and the statement of SI Jai Bhagwan(PW-7).

17. Drawing our attention to the evidence of prosecutrix whosubmitted that the prosecutrix regained consciousness only at 10.00 AMon 29.07.1997 and while so SI Jai Bhagwan could not have recorded herstatement at around 02.30 AM on 29.07.1997 as stated by him and thisagain throws serious doubt about the prosecution case. The prosecutrix(PW-1) was examined in the court on 05.11.1999 nearly two years afterthe occurrence and she might not have been able to recollect thehappenings as it is. It is also pertinent to note that SI Jai Bhagwan (PW-7) has enquired the Doctor and the Doctor has declared that prosecutrixwas fit to make the statement and only thereafter the statement ofprosecutrix (PW-1) was recorded (Ex.-PW1/A). In the light of theevidence of SI Jai Bhagwan that the Doctor declared the prosecutrix fitto make the statement, there is no merit in the contention of the accusedraising doubts about the recording of statement of the prosecutrix at02.30 AM on 29.07.1997.

18. On the next day i.e., on 29-07-1997 all the accused/respondentswere arrested by SI Jai Bhagwan (PW-7) and they were medicallyexamined in the hospital between 11.36 AM to 11.38 AM and the doctoropined that “on clinical examination, there is nothing to suggest thatthe said accused persons are incapable of performing sexualintercourse”. The blood samples and the slide of smear of the accusedwere also seized and the case property was deposited in the malkhanafrom where it was sent to FSL. As pointed out earlier, the FSL Report(Ex.-PW7/G) showed that the semen stains were found on the petticoatof the prosecutrix (B group) which matched with the blood group of theaccused/respondent No.4-Jai Lal Yadav.

A19. It is also relevant to refer to the false explanation of the accusedin their statement under Section 313 Cr.P.C. Though the accused haveadmitted about their medical examination, in their statement under Section313 Cr.P.C. all the accused have given false version regarding themanner and time of arrest as after 04.00 PM on 29.07.1997. The statementof the accused that they were arrested only after 04.00 PM on 29.07.1997Bis not consistent with the materials placed on record that they weremedically examined between 11.36 AM to 11.38 AM on 29.07.1997.The false explanation by the accused is yet another militating circumstanceagainst them.20. Further, as pointed out by the trial court, the prosecutrix hadCno motive to falsely implicate the accused. In their statement underSection 313 Cr.P.C., the respondents/accused have stated that theprosecutrix was of bad character and she was indulging in prostitutionregarding which they have lodged complaint against her and they havebeen falsely implicated in the case. As pointed out by the trial court,Dnothing was brought on record by the accused to show that they havelodged complaint against the prosecutrix. Mahanand Jha (DW-1) statedthat he is the President of the jhuggi area. He further stated that about7-8 women including the prosecutrix have been indulging in prostitutionregarding which he has lodged the complaint. There is nothing on recordto suggest that the accused were in any way involved in making suchEcomplaints against the prosecutrix and other women. The version thatthey lodged complaint against the prosecutrix and therefore, they havebeen falsely implicated in the case, is not substantiated by any record.

21. The High Court observed that the trial court erred in saying that theaccused failed to prove the making of previous complaints against theFprosecutrix. While saying so, the High Court referred to certain complaintsmade against the prosecutrix including the one allegedly given on21.07.1997 which were produced by the Bar at the time of arguments.The power conferred under Section 391 Cr.P.C. is to be exercised withgreat care and caution. In dealing with any appeal, the appellate courtcan refer to the additional evidence only if the same has been recordedGas provided under Section 391 Cr.P.C. Any material produced beforethe appellate court to fill-up the gaps by either side cannot be consideredby the appellate court; more so, to reverse the judgment of the trialcourt. As rightly contended by the learned Additional Solicitor General,the High Court has taken into consideration the materials produced by

the Bar, namely, complaints allegedly made against the prosecutrix andother women including the one allegedly given on 21.07.1997 just oneweek prior to the incident. The High Court was not right in taking intoconsideration those complaints produced at the time of arguments in theappeal.

22. As rightly held by the trial court that even if the allegations ofthe accused that the prosecutrix is of immoral character are taken to becorrect, the same does not give any right to the accused persons tocommit rape on her against her consent. In State of Maharashtra andAnother v. Madhurkar Narayan Mardikar (1991) 1 SCC 57, it washeld that even woman of easy virtue is entitled to privacy and it is notopen to any person to violate her and she is equally entitled to protectionof law. Further, the evidence of such woman cannot be thrownoverboard merely because she is woman of easy virtue.

23. Even in cases where there is some material to show that thevictim was habituated to sexual intercourse, no inference like the victimbeing woman of ‘loose moral character” is permissible to be drawnfrom that circumstance alone. woman of easy virtue also could not beraped by person for that reason. In State of Punjab v. Gurmeet Singhand Others (1996) 2 SCC 384, it was held as under:-

“16. ……Even if the prosecutrix, in given case, has beenpromiscuous in her sexual behaviour earlier, she has right torefuse to submit herself to sexual intercourse to anyone andeveryone because she is not vulnerable object or prey for beingsexually assaulted by anyone and everyone……”(Emphasissupplied) [Underlining added].

While so, the High Court erred in placing reliance upon thecomplaints allegedly made against the prosecutrix to doubt her versionand to hold that false case has been foisted against the accused.

24. It is now well-settled principle of law that conviction can besustained on the sole testimony of the prosecutrix if it inspires confidence.[Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 283]. Itis well-settled by catena of decisions of this Court that there is no ruleof law or practice that the evidence of the prosecutrix cannot be reliedupon without corroboration and as such it has been laid down thatcorroboration is not sine qua non for conviction in rape case. If theevidence of the victim does not suffer from any basic infirmity and the

A‘probabilities factor’ does not render it unworthy of credence, as generalrule, there is no reason to insist on corroboration except from medicalevidence, where, having regard to the circumstances of the case, medicalevidence can be expected to be forthcoming. [State v. N.K. The accused(2000) 5 SCC 30]

B25. The trial court which had the opportunity of seeing and observingthe prosecutrix, found the testimony of the prosecutrix reliable beingcorroborated by her mother’s evidence, medical evidence, FSL reportand other circumstances viz. absence of motive for any false implicationetc. While so, the High Court ought not to have heavily interfered withthe verdict of conviction based on the alleged time gap in the registrationCof two FIRs and other aspects of investigation in connection with FIRNo.558/97 to reverse the verdict of conviction.

26. The High Court reversed the verdict of conviction mainly onthe ground of difference of timing in the registration of FIR No.558/97and other aspects of investigation. At about 08.05 PM, telephonicDinformation was received vide DD No.67-B at Police Station Hauz Khasregarding quarrel at Shaheed Bhagat Singh Jhuggi. The specific caseof the defence is that the prosecutrix was in police custody in FIR No.558/97 under Section 160 IPC till about 10.00 PM. As per the deposition ofSI Prem Chand (DW-3), he reached the spot with one lady constableEMs. Sarla Toppo and Constable Sagar Chandra (DW-5) at around 08:18PM and found the ladies including prosecutrix quarrelling at public placein their jhuggis and immediately arrested the ladies and conductedinvestigation and sent the ruqqa with constable to register the FIRunder Section 160 IPC. On receipt of information, FIR No.558/97 atPolice Station Hauz Khas was registered at 09.20 PM on 28.07.1997.FSI Prem Chand (DW-3) stated about the arrest and search of fourwomen and then released them on bail bonds and he was on the spot upto 08:50 PM.

27. The High Court relied on the statement of Head ConstableRatan Lal (DW-4) that SI Prem Chand (DW-3) has made telephonicGcall at 08:52 PM to know the serial number of the case and because theFIR was registered at 09:20 PM, the High Court came to the conclusionthat the women involved in the FIR No.558/97 could not have beenreleased before 09:20 PM because one of the bail bonds contain the saidFIR number and also held that it is highly unlikely for the police to haveHcompleted all the steps referred to above in respect of each of the four

women and released them by 08:52 PM and as per the site plan drawnin FIR No.559/97, the distance between the road and jhuggi is such thatit was impossible for the prosecutrix to come back alone and be in herjhuggi at 09.00 PM.

28. The occurrence of rape (FIR No.559/97) was at about09.00 PM regarding which information was received by the same PoliceStation Hauz Khas at about 09.30 PM. SI Jai Bhagwan (PW-7) alongwith constable Khushi Ram (PW-4) reached the spot and learnt that theprosecutrix was taken to hospital by PCR Van. Thereafter, SI JaiBhagwan (PW-7) along with constable Khushi Ram (PW-4) went toAIIMS and found the prosecutrix there and he recorded her statementat 02.30 AM on 29.07.1997 after getting the certificate from the doctor.Ruqqa for registration of the case under Section 376 IPC was sent at02.50 AM and case under FIR No.559/97 under Section 376 IPC readwith Section 34 IPC was registered at 03.15 AM on 29.07.1997.

29. After referring to the timings of FIR No.558/97, the HighCourt held that the quarrelling ladies including the prosecutrix were incustody of the police at least till 08.50 PM and it was highly improbablethat the prosecutrix could have come back and was alone in her jhuggiat 09.00 PM on 28.07.1997 and that the respondents/accused enteredher jhuggi and committed rape as alleged by her and that even before09.30 PM, she was picked up from there by PCR Van. The High Courttherefore concluded that SI Jai Bhagwan, constable Khushi Ram(PW-4) and the prosecutrix (PW-1) have fabricated false case againstthe accused. In this regard, the High Court relied upon the Report ofJoint Commissioner dated 07.11.2000 (Ex.-DW6/A) and the Report ofS.K. Gautam, DCP.

30. The reasoning of the High Court that the ladies were arrestedin connection with FIR No.558/97 under Section 160 IPC and that theladies must have remained with the custody of police till 09.20 PMproceeds on presumptive footing and surmises. In his evidence, MahanandJha (DW-1) has stated that “the said ladies came back to the area at08.30 PM and started abusing the neighbourers”. Likewise,Sharabuddin (DW-2) has stated that “the police released the said ladiesincluding Phoola (PW-1) and after coming back to her jhuggi, shestarted abusing the neighbours. Then, I informed PCR Van ontelephone and PCR Van came and took Phoola……..”. The HighCourt failed to appreciate the testimonies of DWs 1 and 2 who have

Acategorically stated that the prosecutrix had come back and was abusingneighbours. The evidence of DWs 1 and 2 clearly shows that theprosecutrix was let out by the police at or about 08.20 PM on 28.07.1997.Mere fact that FIR No.558/97 under Section 160 IPC was registered at09.20 PM does not indicate that the prosecutrix and other quarrellingladies were in the police custody till 09.30 PM on 28.07.1997 (with respectBto the offence in FIR No.558/97).

31. There were two sets of persons and two sets of officers areinvolved in FIR No.558/97 and FIR No.559/97. The aspect regardingFIR No.558/97 was not put to the witnesses even before the trial court.Everything was brought about in appeal as additional evidence in exerciseCof the power of the appellate court under Section 391 Cr. P.C. Placingof heavy reliance by the High Court upon the contents in FIR No.558/97was not correct approach.

32. Unfortunately, the High Court was swayed by theDepartmental Enquiry Report (Ext.-DW6/A) prepared by JointDCommissioner of Police that was brought on record by ConstableDharamvir Singh (DW-6). Going through the entire report, we observethat the departmental enquiry was primarily based on the diary entriesand the statements of one complainant Amod Shastri and statement ofASI Kamal Dev. In the report, Joint Commissioner of Police, inter-Ealia concluded that the rape incident could not have happened at 09.00PM while SI Prem Chand (DW-3) indicated that quarrelling ladiesincluding the prosecutrix were released at 08.50 PM. It is pertinent tonote that neither S.K. Gautam, Deputy Commissioner of Police wasexamined nor the said complainant Amod Shastri and ASI Kamal Devwere examined. Yet the High Court relied on it to come to conclusionFthat the rape incident could not have happened at the alleged time andmanner.

33. ASI Kamal Dev who took the prosecutrix to the hospital inPCR Van is said to have made the statement before the DeputyCommissioner of Police stating that when he questioned the prosecutrix,Gshe was conscious and that she told him that she had been beaten upand has not stated anything about the alleged incident of rape. In ourview, the High Court was not right in placing heavy reliance upon thereport of the Joint Commissioner and the report of Deputy Commissionerwho were not examined before the court.

34. Based upon the report of Joint Commissioner of Police (Ex.-DW6/A) and the report of S.K. Gautam, DCP, the High Court madedisparaging remarks against the police officials and directed prosecutionagainst the police under Sections 193 and 195 IPC. The police officialswere neither party nor summoned by the High Court before makingsuch disparaging remarks and giving directions against them in the appealagainst the conviction. On behalf of the police officials, it is submittedthat the conclusions drawn by the High Court are based on mere surmisesand presumptions. The High Court further relied on the DepartmentalEnquiry Report (Ex.-DW6/A) which was not put to test and the makerof the report was not examined which therefore has no evidentiary valuein the eyes of law.

35. While passing disparaging remarks against the police officialsand directing prosecution against them, in our considered view, the HighCourt has failed to bear in mind the well settled principles of law thatshould govern the courts before making disparaging remarks. Anydisparaging remarks and direction to initiate departmental action/prosecution against the persons whose conduct comes into considerationbefore the court would have serious impact on their official career. InS.K. Viswambaran v. E. Koyakunju and Others (1987) 2 SCC 109,this Court held as under:-

“9. Stung by the remarks made against him without even ahearing………….”.

13. We have also to point out grievous procedural error committedby the High Court. Even assuming for argument’s sake that forexpunging the remarks against Respondents 2 and 3 the conductof the appellant required scrutiny and merited adverse comment,the principles of natural justice required the High Court to haveissued notice to the appellant and heard him before passing adverseremarks against him if it was considered necessary. By its failurethe High Court has failed to render elementary justice to theappellant.

14. ………..In State of U.P. v. Mohd. Naim AIR 1964 SC 703,it was held as follows:

“If there is one principle of cardinal importance in theadministration of justice, it is this: the proper freedom andindependence of Judges and Magistrates must be maintained

and they must be allowed to perform their functions freely andfearlessly and without undue interference by anybody, evenby this Court. At the same time, it is equally necessary that inexpressing their opinions Judges and Magistrates must be guidedby considerations of justice, fair play and restraint. It is notinfrequent that sweeping generalisations defeat the verypurpose for which they are made. It has been judiciallyrecognised that in the matter of making disparaging remarksagainst persons or authorities whose conduct comes intoconsideration before courts of law in cases to be decided bythem, it is relevant to consider (a) whether the party whoseconduct is in question is before the court or has an opportunityof explaining or defending himself; (b) whether there is evidenceon record bearing on that conduct justifying the remarks; and(c) whether it is necessary for the decision of the case, as anintegral part thereof, to animadvert on that conduct. It has alsobeen recognised that judicial pronouncements must be judicialin nature, and should not normally depart from sobriety,moderation and reserve.”

This ratio has been followed in R.K. Lakshmanan v. A.K.Srinivasan and Another (1975) 2 SCC 466 and NiranjanPatnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569(to which one of us was party). Judged in the light of the abovetests, it may be seen that none of the tests is satisfied in this case.It is indeed regrettable that the High Court should have lightly

passed adverse remarks of very serious nature affecting thecharacter and professional competence and integrity of theappellant in purported desire to render justice toRespondents 2and 3 in the petition filed by them for expunction of adverse remarksmade against them.” [Underlining added].

36. In Manish Dixit and Others v. State of Rajasthan (2001) 1SCC 596, this Court held as under:-

“42. ………Such disparaging remarks and the direction to initiatedepartmental action against him could have very serious impacton his official career.

43. Even those apart, this Court has repeatedly cautioned thatbefore any castigating remarks are made by the court against anyperson, particularly when such remarks could ensure seriousconsequences on the future career of the person concerned, heshould have been given an opportunity of being heard in the matterin respect of the proposed remarks or strictures.Such anopportunity is the basic requirement, for, otherwise the offendingremarks would be in violation of the principles of natural justice.In this case such an opportunity was not given to PW 30(Devendra Kumar Sharma). (State of U.P. v. Mohd. Naim AIR1964 SC 703, Ch. Jage Ram, Inspector of Police and Anotherv. Hans Raj Midha (1972) 1 SCC 181, R.K. Lakshmanan v.A.K. Srinivasan and Another (1975) 2 SCC 466, NiranjanPatnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569and State of Karnataka v. Registrar General, High Court ofKarnataka (2000) 7 SCC 333).” [Underlining added]

Since the High Court has passed strictures against the policeofficials who were involved in the investigation in FIR No.559/1997without affording an opportunity of hearing to them, the disparagingremarks are liable to be set aside.

37. Insofar as the direction to initiate the prosecution under Sections193, 195 and 211 IPC is concerned, Section 340 Cr.P.C. provides theprocedure for offences enumerated in Section 195(1)(b) Cr.P.C. Theobject of Section 340 Cr.P.C. is to ascertain whether any offenceaffecting administration of justice has been committed in relation to anydocument produced or evidence given in court during the time when thedocument or evidence was in custodian legis and whether it is alsoexpedient in the interest of justice to take such action as required underSection 340 Cr.P.C.

38. Before directing the prosecution to be initiated under Section 195Cr.P.C., the court has to follow the procedure under Section 340Cr.P.C. and record finding that “it is expedient in the interest ofjustice……..”. Though wide discretion is given to court under Section340 Cr.P.C., the same has to be exercised with care and caution. Toinitiate prosecution under Section 195 Cr.P.C too readily that too againstthe police officials who were conducting the investigation may not be acorrect approach. Contention of the learned counsel for the police officialsis that before passing the direction to initiate the prosecution for the

Aoffences under Sections 193, 195 and 211 IPC, the High Court ought tohave followed the procedure contemplated under Section 340(1) Cr.P.C.39. Section 340(1) Cr. P.C. reads as under:-

340. Procedure in cases mentioned in Section 195 – (1)When, upon an application made to it in this behalf or otherwise,Bany Court is of opinion that it is expedient in the interests of justicethat an inquiry should be made into any offence referred to inClause (b) of sub-section (1) of Section 195, which appears tohave been committed in or in relation to proceeding in that Courtor, as the case may be, in respect of document produced orCgiven in evidence in proceeding in that Court, such Court may,after such preliminary inquiry, if any, as it thinks necessary-

(a)record finding to that effect;

(b)make complaint thereof in writing;

(c)send it to Magistrate of the first class havingDjurisdiction;

(d)take sufficient security for the appearance of the accusedbefore such Magistrate, or if the alleged offence isnon-bailable and the Court thinks it necessary so to do,send the accused in custody to such Magistrate; and

(e)bind over any person to appear and give evidence beforesuch Magistrate.

There are two preconditions for initiating proceedings under Section 340Cr. P.C. :F(i)materials produced before the court must make out primafacie case for complaint for the purpose of inquiry into anoffence referred to in clause (b)(i) of sub-section (1) ofSection 195 Cr.P.C. and

(ii)it is expedient in the interests of justice that an inquiry shouldGbe made into the alleged offence.

40. Observing that the court has to be satisfied as to the prima-facie case for complaint for the purpose of inquiry into an offenceunder Section 195(1)(b) Cr.P.C., this Court in Amarsang Nathaji ashimself and as karta and manager v. Hardik Harshadbhai Pateland Others (2017) 1 SCC 113 held as under:-H

“6. The mere fact that person has made contradictorystatement in judicial proceeding is not by itself always sufficientto justify prosecution under Sections 199 and 200 of the PenalCode, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but itmust be shown that the defendant has intentionally given falsestatement at any stage of the judicial proceedings or fabricatedfalse evidence for the purpose of using the same at any stage ofthe judicial proceedings. Even after the above position has emergedalso, still the court has to form an opinion that it is expedient in theinterests of justice to initiate an inquiry into the offences of falseevidence and offences against public justice and more specificallyreferred to in Section 340(1) CrPC, having regard to the overallfactual matrix as well as the probable consequences of such aprosecution. (See K.T.M.S. Mohd. and Another v. Union ofIndia (1992) 3 SCC 178). The court must be satisfied that suchan inquiry is required in the interests of justice and appropriate inthe facts of the case.

7. In the process of formation of opinion by the court that it isexpedient in the interests of justice that an inquiry should be madeinto, the requirement should only be to have prima faciesatisfaction of the offence which appears to have been committed.It is open to the court to hold preliminary inquiry though it is notmandatory. In case, the court is otherwise in position to formsuch an opinion, that it appears to the court that an offence asreferred to under Section 340 CrPC has been committed, the courtmay dispense with the preliminary inquiry. Even after forming anopinion as to the offence which appears to have been committedalso, it is not mandatory that complaint should be filed as matterof course. (See Pritish v. State of Maharashtra and Others(2002) 1 SCC 253)

8. In Iqbal Singh Marwah and Another v. Meenakshi Marwahand Another (2005) 4 SCC 370, Constitution Bench of thisCourt has gone into the scope of Section 340 CrPC. Para 23deals with the relevant consideration:

“23. In view of the language used in Section 340 CrPC thecourt is not bound to make complaint regarding commissionof an offence referred to in Section 195(1)(b), as the section isconditioned by the words “court is of opinion that it is expedient

ABC

in the interests of justice”. This shows that such course willbe adopted only if the interest of justice requires and not inevery case. Before filing of the complaint, the court may holda preliminary enquiry and record finding to the effect that itis expedient in the interests of justice that enquiry should bemade into any of the offences referred to in Section 195(1)(b).This expediency will normally be judged by the court byweighing not the magnitude of injury suffered by the personaffected by such forgery or forged document, but having regardto the effect or impact, such commission of offence has uponadministration of justice. It is possible that such forgeddocument or forgery may cause very serious or substantialinjury to person in the sense that it may deprive him of veryvaluable property or status or the like, but such document maybe just piece of evidence produced or given in evidence incourt, where voluminous evidence may have been adducedand the effect of such piece of evidence on the broad conceptof administration of justice may be minimal. In suchcircumstances, the court may not consider it expedient in theinterest of justice to make complaint.”

The same principle was reiterated in Chintamani Malviya v. HighCourt of Madhya Pradesh (2018) 6 SCC 151.

41. It has been consistently held by this Court that prosecution forperjury be sanctioned by the courts only in those cases where perjuryappears to be deliberate and that prosecution ought to be ordered whereit would be expedient in the interest of justice to punish the delinquentand not merely because there is some inaccuracy in the statement. InFChajoo Ram v. Radhey Shyam and Another (1971) 1 SCC 774, thisCourt held as under:-

“7. The prosecution for perjury should be sanctioned by courtsonly in those cases where the perjury appears to be deliberateand conscious and the conviction is reasonably probable or likely.No doubt giving of false evidence and filing false affidavits is anevil which must be effectively curbed with strong hand but tostart prosecution for perjury too readily and too frequently withoutdue care and caution and on inconclusive and doubtful materialdefeats its very purpose. Prosecution should be ordered when itis considered expedient in the interests of justice to punish the

delinquent and not merely because there is some inaccuracy inthe statement which may be innocent or immaterial. There mustbe prima facie case of deliberate falsehood on matter of substanceand the court should be satisfied that there is reasonable foundationfor the charge. In the present case we do not think the materialbrought to our notice was sufficiently adequate to justify theconclusion that it is expedient in the interests of justice to file acomplaint. The approach of the High Court seems somewhatmechanical and superficial: it does not reflect the requisite judicialdeliberation….”

42. By perusal of the impugned judgment of the High Court, wefind that the High Court has not recorded finding that “it is expedientin the interest of justice to initiate an inquiry into the offencespunishable under Sections 193 and 195 IPC against the policeofficials and under Section 211 IPC against the prosecutrix”.Without affording an opportunity of hearing to the police officials andbased on the materials produced before the appellate court, the HighCourt, in our view, was not right in issuing direction to the RegistrarGeneral to lodge complaint against the police officials and the saiddirection is liable to be set aside.43. The High Court erred in brushing aside the evidence of theprosecutrix by substituting its views on the basis of submissions made onthe sequence of events in FIR No.558/97 and the report of the JointCommissioner of Police (Ex.-DW6/A) and the report of the DeputyCommissioner of Police. The High Court erred in taking into considerationthe materials produced before the appellate court viz., the allegedcomplaints made against the prosecutrix and other women alleging thatthey were engaged in prostitution. Even assuming that the prosecutrixwas of easy virtue, she has right of refuse to submit herself to sexualintercourse to anyone. The judgment of the High Court reversing theverdict of conviction under Section 376(2)(g) recorded by the trial courtcannot be sustained and is liable to be set aside.

44. For the conviction under Section 376(2)(g) IPC, the accusedshall be punished with rigorous imprisonment for term which shall notbe less than ten years, but which may be extended to imprisonment forlife. After the amendment by Act 13 of 2013 (with retrospective effectfrom 03.02.2013), the minimum sentence of ten years was increased totwenty years as per Section 376-D and in the case of conviction, the

Acourt has no discretion but to impose the sentence of minimum twentyyears. However, prior to amendment, proviso to Section 376(2) IPCprovided discretion to the court that “the court may, for adequateand special reasons to be mentioned in the judgment, impose asentence of imprisonment for term of less than ten years.” Thoughthe court is vested with the discretion, in the facts and circumstances ofBthe case, we are not inclined to exercise our discretion in reducing thesentence of imprisonment of ten years imposed upon the respondents-accused.

45. In the result, the impugned judgment of the High Court is setaside and the appeal preferred by the State is allowed. The verdict ofCconviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) underSection 376(2)(g) IPC and also the sentence of imprisonment of tenyears imposed upon them is affirmed. The respondents-accused Nos.1to 4 shall surrender themselves within period of four weeks from todayto serve the remaining sentence, failing which they shall be taken intoDcustody. We place on record the valuable assistance rendered by thecounsel Mr. Praveen Chaturvedi who has been nominated by the SupremeCourt Legal Services Committee to argue on behalf of the respondents/accused.

46. The direction of the High Court to lodge complaint against theEpolice officials (appellants in Criminal Appeal No.2298 of 2009) is setaside and the appeal preferred by them is allowed.

Divya Pandey

Appeals disposed of.