Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2024 INSC 254
CRIMINAL APPEAL NO.1753/2023
PANKAJ SINGH APPELLANT(S)
VERSUS
THE STATE OF HARYANA RESPONDENT(S)
J U D G M E N T
ABHAY S.OKA, J
1. Heard the learned counsel appearing for the parties.
2. The Trial Court convicted the appellant-accused for the
offences punishable under Sections 342, 376 and 201 of the Indian
Penal Code, 1860 (for short, “the IPC”). The maximum sentence
imposed is life imprisonment for the offence punishable under
Section 376 of the IPC with a fine of Rs.1,00,00/-. We must note
that charges were also framed against the appellant-accused for the
offences punishable under Sections 365, 354D(1)(ii) and 506 of the
IPC. The Trial Court acquitted the appellant-accused as far as
these offences are concerned. Apart from the appeal against
conviction filed by the appellant-accused, an appeal against his
acquittal for the three offences mentioned above was filed by the
Prosecutrix (victim). The High Court did not interfere in the
appeals preferred by the Prosecutrix and the appellant. By the
impugned judgment, the judgment of the Trial Court has been
confirmed by the High Court.
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.04.01
17:04:27 IST
Reason:
3. This is a case where, at the time of the incident, the
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Prosecutrix was 28 years old. Both the appellant-accused and the
Prosecutrix were married. It is brought on record that the
Prosecutrix was a graduate. The allegation made by the prosecutrix
is that the appellant was a friend of her husband’s brother.
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Therefore, she was acquainted with the appellant. On 22 May 2018,
the appellant visited a place called Hansi to consult a doctor.
When she was waiting at a bus stand to board a bus to go back to
Bhiwani, where she was staying, the appellant came there. He
requested the Prosecutrix to accompany him in his car as he was
proceeding to Bhiwani. On the pretext that he was having stomach
pain and wanted to relieve himself, he took the appellant to a room
in the Jindal Guest House at Bhiwani. He bolted the door from
inside and then made a forcible intercourse with the Prosecutrix.
After taking her objectionable photographs, he threatened her to
show the pictures to her family members if she disclosed the
incident to anyone.
4. In a case like this, the Court has to consider whether the
evidence of the Prosecutrix inspires confidence. While doing so,
the Court must not be influenced by minor contradictions and
omissions in the evidence of the victim of a sexual offence. It is
always difficult for a woman to depose in such cases. Considering
the victim's position, her evidence needs to be appreciated.
5. The learned counsel appearing for the appellant-accused has
taken us through the evidence of the Prosecutrix and the other
material prosecution witnesses. His submission, in short, is that
the relationship between the appellant-accused and the Prosecutrix
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was consensual. He submitted that the appellant-accused and the
Prosecutrix moved from place to place, and it is an admitted
position that the Prosecutrix willingly accompanied the appellant-
accused. He further submitted that if the footage of the CCTV
camera in the Jindal Guest House, where the incident allegedly took
place, had been produced by the Police, it could have shown that
both the appellant-accused and the Prosecutrix happily entered the
Guest House and happily left the same. His submission is that the
evidence of the Prosecutrix deserves to be rejected.
6. The learned counsel appearing for the State supported the
impugned judgments. He submitted that the prosecutrix's evidence
cannot be discarded on technical grounds when, in substance, the
Prosecutrix has established that there was forcible sexual
intercourse. He further submitted that the law is settled that the
Prosecutrix may not sustain any injuries and, therefore, her
version cannot be disbelieved on the ground that she did not suffer
any injury. He lastly submitted that there is no scope to interfere
with the concurrent findings of fact.
7. The learned counsel appearing for the Prosecutrix relied upon
the WhatsApp conversation between the Prosecutrix and the
appellant-accused. He submitted that though the certificate under
Section 65B of the Indian Evidence Act, 1872 (for short, “the
Evidence Act”) was not produced about the WhatsApp conversation
produced on record, as the appellant-accused had not objected to
the production of the WhatsApp conversation, in view of Section 294
of the Code of Criminal Procedure, 1973 (in short, “the Cr. PC,”),
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the WhatsApp conversation is admissible in evidence. He relied
upon the presumption under Section 114A of the Indian Evidence Act,
1872 (for short, ‘the Evidence Act’). He submitted that it would
have to be presumed that the sexual intercourse was without the
consent of the Prosecutrix. He submitted that, in this case, the
offence is under clause (f) of sub-Section (2) of Section 376 of
the IPC. He further submitted that as far as the Prosecutrix is
concerned, the appellant-accused was in a position of trust and,
therefore, clause (f) of sub-Section (2) of Section 376 of the IPC
will apply and, consequently, the presumption under Section 114A of
the Evidence Act ought to be invoked in this case. He also
submitted that the appellant-accused had not adduced any evidence
to prove his innocence. He submitted that no interference is
called for considering the concurrent findings recorded by the
Trial Court and the High Court.
8. To appreciate the submissions made across the Bar, we are
reproducing the material part of the examination-in-chief of the
Prosecutrix, which reads thus:
“Stated and devar and he usually visited our house. I
along with my family members attended the marriage of
accused Pankaj at Village Prem Nagar in the year,
2012, accused along with his wife came in our house
in the month of April, 2018 and then I gave my mobile
number to him for sending his marriage photographs on
my mobile in presence of my family members. After
three four days, accused send his marriage
photographs on my mobile phone. Today, I do not know
remember my mobile number. Thereafter, accused send
good morning, good evening and others messages on
whatsapp and I replied the same to him. Accused
making my ear against my in-laws family and he said
that this not enough but it is only 10% but he will
tell everything when we met. Accused Pankaj suggested
one doctor to Hansi regarding my back pain and on
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that I along with my family members and Devar visited
that doctor for my treatment. Before visit of my
Hansi, I informed the accused through whatsapp
message that I will visit Hansi to meet the doctor of
Hansi on 22.05.2018. Accordingly, on 22.05.2018, I
went to Hansi but in the way at Village Bawani Khera,
accused Pankaj met me from there we reached Hansi. I
took medicine from the doctor of Hansi and after
taking medicine, we started for Bhiwani and in
between accused Pankaj complained me that he was
having severe stomach pain and wanted to get himself
fresh then I told to him that you will fresh yourself
and I will go to Bhiwani by bus. Accused told that he
will drop me there. Accused stopped his car in front
of Jindal Guest House, Bhiwani, firstly he went alone
in Jindal Guest House and after some he came before
me and told that you should eat something and he
would fresh himself by that time. On believing him, I
went in Jindal Guest House with him and he took me in
a room where accused bolted the inside room and
started molested me and committed forcibly rape upon
me. In that process, I lost my one ear ring, my
bangles were broken and I received injury on my hand
and my clothes were torn. Accused also clicked my
obscene photographs after committing rape upon me.
Accused threatened me if I disclosed the above said
incident to anyone then he would kill me and upload
the obscene photographs on the internet. Thereafter,
I returned my home and due to that incident, I was
scared. I disclosed the whole incident to my uncle
and aunty and they encouraged me that you would tell
the whole incident to your in laws then I disclosed
the whole incident to my husband. My husband
disclosed the incident to my dever Mahesh.
Thereafter, I along with my devar came to the police
and moved complaint Exh. PW7/A against the accused
duly signed by me at Point-A. Thereafter, I was
medico-legally examined from General Hospital,
Bhiwani. On the next date, I demarcated the place of
occurrence to the police.”
9. Before we analyse the evidence of the prosecutrix, we deal
with the argument that Section 114A of the Evidence Act is
applicable. Section 114A of the Evidence Act reads thus:
“114A. PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN
PROSECUTION FOR RAPE.–In a prosecution for rape under
clause (a), clause (b), clause (c), clause (d), clause (e),
clause (f), clause (g), clause (h), clause (i), clause (j),
clause (k), clause (l), clause (m) or clause (n) of sub-
section (2) of section 376 of the Indian Penal Code (45 of
1860), where sexual intercourse by the accused is proved
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and the question is whether it was without the consent of
the woman alleged to have been raped and such woman states
in her evidence before the court that she did not consent,
the court shall presume that she did not consent.
Explanation. –In this section, “sexual intercourse”
shall mean any of the acts mentioned in clauses (a) to (d)
of section 375 of the Indian Penal Code (45 of 1860).”
10. The condition precedent for applicability of Section 114A of
the Evidence Act is that the prosecution must be for the offence of
rape under various clauses set out therein under sub-Section (2) of
Section 376 of the IPC. Clause (f) of sub-Section (2) of Section
376 of the IPC reads thus:
“376. PUNISHMENT FOR RAPE.—(1)*
(2) Whoever,-
…
(f) being a relative, guardian or teacher of, or a person
in a position of trust or authority towards the woman,
commits rape on such woman; or
…………”
11. In this case, no charge was framed against the appellant-
accused for the offence punishable under clause (f) of sub-Section
(2) of Section 376 of the IPC. A perusal of clause (f) of sub-
Section (2) of Section 376 shows that the punishment for the
offence covered by sub-Section (2) of Section 376 is more stringent
than the punishment for the offence under sub-Section (1) of
Section 376. In the absence of the charge framed at any stage
against the appellant-accused for the offence punishable under
clause (f) of sub-Section (2) of Section 376 of the IPC, now, at
this stage, neither the prosecution nor the victim can contend that
clause (f) of sub-Section (2) of Section 376 of the IPC was
applicable. Another important aspect which goes to the root of the
matter is that in his examination under Section 313 of the Cr.PC,
the case that he was in a position of trust to the victim, was not
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put to him. In any event, the contention of the learned counsel
appearing for the Prosecutrix that the appellant-accused was a
person in a position of trust as far as the Prosecutrix is
concerned is completely erroneous. There was no fiduciary
relationship between the appellant-accused and the Prosecutrix,
which will be apparent when we examine the Prosecutrix's evidence.
Therefore, on the face of it, the presumption under Section 114A of
the Evidence Act will not apply, and, therefore, the burden will be
on the prosecution to prove that the sexual intercourse was without
the consent of the Prosecutrix. We may also add here that in our
jurisprudence unless there is a specific legislative provision
which puts a negative burden on the accused, there is no burden on
the accused to lead evidence for proving his innocence. The
accused may have some burden to discharge in case of a statutory
prescription, such as Section 114A of the Evidence Act. In this
case, the burden was on the prosecution to lead evidence to prove
the guilt of the accused beyond a reasonable doubt.
12. Now, we come to the evidence of the Prosecutrix. The salient
features of the evidence can be summarised as follows:
(a) It was the Prosecutrix who provided her cellphone number
to the appellant-accused to enable him to send his marriage
photographs;
(b) After that, there was a continuous exchange of WhatsApp
messages, including good morning, good evening, etc., between
the appellant-accused and the Prosecutrix.
(c) The Prosecutrix used to reply to the WhatsApp messages
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sent by the appellant-accused;
(d) The Prosecutrix informed the appellant-accused through a
WhatsApp message that she would be visiting a doctor at Hansi
on 22nd May 2018. According to her, on the way to Hansi, she
met the appellant-accused at Village Bawani Khera, and they
travelled together to Hansi;
(e) From Hansi, they travelled together to Hisar, where they
visited Suncity Mall; and
(f) They travelled together in the appellant-accused's car.
13. The deposition of the Prosecutrix shows that she went from
place to place with the appellant without any protest. Bajrang Lal
(PW-8) owns the Jindal Guest House, Bhiwani, where the incident
allegedly took place. In his examination-in-chief, he deposed that
when the appellant-accused and the Prosecutrix came to his Hotel,
they disclosed that they were husband and wife. In the cross-
examination, he stated that he obtained the signatures of both of
them at the time of their arrival and departure in a register.
14. Mahesh (PW-15) is the brother-in-law of the Prosecutrix, who
accompanied the Prosecutrix to the Police Station to lodge a
complaint. He stated in the cross-examination that even after the
incident and before the registration of the complaint, there was a
conversation on WhatsApp between the appellant-accused and the
Prosecutrix about 300 to 400 times. Thus, even after the incident,
the Prosecutrix was in conversation with the appellant.
15. Thus, the evidence of the Prosecutrix and the other
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prosecution witnesses shows that more than one month before the
alleged incident, the appellant-accused and the Prosecutrix
exchanged frequent WhatsApp messages. Secondly, the appellant-
accused met the Prosecutrix when she was travelling on the way to
Hansi. The Prosecutrix had informed the appellant about her visit
to Hansi. Thirdly, while coming out of the hotel room, the
Prosecutrix did not raise any protests, did not make any hue and
cry, or did not complain. She signed the hotel register while
leaving the hotel with the appellant. Lastly, while entering the
Hotel, the appellant-accused and the Prosecutrix posed as husband
and wife. All this has to be appreciated in light of the fact that
we are dealing with a case of a well-educated victim who was
married and a graduate. Her age at the time of the incident was
about 28 years.
16. It is true that the absence of injury on the person of the
victim of the offence of rape is not always relevant. But, in this
case, the Prosecutrix deposed that she sustained an injury on her
hand as her bangles were broken. However, the Medical Officer (PW-
9) deposed that there were no external marks of injury on any part
of her body.
17. We may also note here that on the way from Hansi, the
Prosecutrix travelled in the car of the appellant-accused along
with the appellant, and the Guest House where they entered is at
Bhiwani, which is close to her matrimonial house as deposed by her
in her cross-examination. According to the Prosecutrix’s version,
the appellant-accused entered the Jindal Guest House first, and she
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was waiting in the car. If there was any compulsion made by the
appellant-accused, the Prosecutrix could have got out of the car
and walked up to her residence. However, she did not do that.
18. There is one more critical aspect of the matter. PW-15, the
Assistant Sub Inspector of Police, who was investigating the
offence, stated that she had called for the CD of what was recorded
on the CCTV camera at Jindal Guest House. She stated that she had
seen the footage and had prepared a report on the basis of the
footage. However, the prosecution has not produced the said CCTV
footage. The prosecution had no reason to withhold such an
important piece of evidence.
19. The cumulative effect of the above discussion is that it is
very unsafe to rely upon the testimony of the Prosecutrix in this
case.
20. The submission made by the learned counsel appearing for the
Prosecutrix based on Section 294 of the Cr.PC remains to be dealt
with. Section 294 of the Cr.PC reads thus:
“294. NO FORMAL PROOF OF CERTAIN DOCUMENTS.—(1) Where any
document is filed before any Court by the prosecution or the
accused, the particulars of every such document shall be
included in a list and the prosecution or the accused, as
the case may be, or the pleader for the prosecution or the
accused, if any, shall be called upon to admit or deny the
genuineness of each such document.
(2) The list of documents shall be in such form as may be
prescribed by the State Government.
(3) Where the genuineness of any document is not disputed,
such document may be read in evidence in inquiry, trial or
other proceeding under this Code without proof of the
signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require
such signature to be proved.”
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21. Firstly, the learned counsel appearing for the Prosecutrix
admitted that the prosecution did not produce the WhatsApp messages
before the recording of evidence commenced. According to his
version, the same was produced when the Prosecutrix was under
cross-examination. The essential ingredient of sub-Section (1) of
Section 294 of the Cr.PC is that when any document is produced by
the prosecution or the accused, the parties shall be called upon to
admit or deny the genuineness of each such document. In this case,
it is nobody’s case that the appellant-accused was called upon to
admit or deny the genuineness of the WhatsApp chats. Moreover,
sub-Section (3) of Section 294 of the Cr.PC indicates that even if
a particular document is not disputed, the Court has the discretion
to read or not to read the same in evidence without formal proof of
the signature of the person to whom it purports to be signed. The
Court always has the power to require the signature to be proved.
Therefore, the contention of the learned counsel appearing for the
Prosecutrix based on Section 294 of the Cr.PC has absolutely no
merit. In any case, a certificate under Section 65B of the
Evidence Act has not been produced.
22. Therefore, in our considered opinion, the prosecution has
failed to prove the appellant's guilt beyond a reasonable doubt.
Hence, the impugned orders cannot be sustained, and they are hereby
quashed and set aside. The appellant-accused is acquitted of the
charges framed against him.
23. The Appeal is, accordingly, allowed.
24. The appellant is on bail. Therefore, his bail bond shall
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stand cancelled.
25. Pending applications, including the application for
intervention, stand disposed of accordingly.
..........................J.
(ABHAY S.OKA)
..........................J.
(UJJAL BHUYAN)
NEW DELHI;
MARCH 21, 2024.
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