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Jai Bhagwan vs State (Govt. Of N.C.T. Delhi) on 30 October, 2018

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2299 OF 2009

STATE (GOVT. OF NCT OF DELHI) ….Appellant

VERSUS

PANKAJ CHAUDHARY AND ORS. ….Respondents

With

CRIMINAL APPEAL NO.2298 OF 2009

JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the judgment dated 05.05.2009

passed by the High Court of Delhi in Criminal Appeal No.384 of

2000 in and by which the High Court allowed the appeal filed by the

respondents/accused thereby setting aside their conviction under

Section 376(2)(g) IPC passed by the trial court and the sentence of

imprisonment imposed upon them. By the impugned judgment, the

High Court also issued direction to lodge a complaint against the

appellants-police officials (CA No.2298/2009) for prosecuting them
Signature Not Verified

Digitally signed by
MAHABIR SINGH
Date: 2018.10.30
15:39:52 IST
under Sections 193 and 195 IPC.

Reason:

1

2. Case of prosecution is that the accused/respondents who

were living in the neighbourhood of the prosecutrix (PW-1) at

Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her

jhuggi at about 09.00 PM on 28.07.1997 and demanded a bidi from

her. She refused to give them any bidi. Thereafter, they demanded

water which she again refused. The prosecutrix has alleged that

thereafter respondents/accused switched off the electricity and

accused/respondent No.2 Gunjesh Chaudhary caught hold of her

hands and the other three accused had torn her clothes and

committed rape on her in turn. The prosecutrix has alleged that she

raised an alarm and fell unconscious thereafter. On hearing the

alarm, Bashira Khatoon, mother of the prosecutrix (PW-3) came

there and saw the four accused/respondents coming out of the

jhuggi. Bashira Khatoon (PW-3) found the prosecutrix lying

unconscious inside the jhuggi. Police Control Room (PCR) van took

the prosecutrix to All India Institute of Medical Sciences (AIIMS)

hospital. At about 11.45 PM, the prosecutrix was medically

examined by Dr. Monika and it was noted in MLC (Ex.-PW6/A) that

there were “bruises of 4 x 4 cm on medial aspects of both thighs of

the prosecutrix”. The blouse of the prosecutrix was found torn in the

back side along the left sleeve.

2

3. At about 09.30 PM, information was received in the Police

Station, Hauz Khaz PCR/South District regarding some quarrel at

Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with

Constable Khushi Ram (PW-4) reached the spot and learnt that the

prosecutrix was taken to the hospital by a PCR Van. SI Jai

Bhagawan (PW-7) along with the constable went to the AIIMS and

found PW-1 Phoola (Prosecutrix) there. Doctor declared PW-1 fit to

make statement and SI Jai Bhagwan recorded her statement

concerning allegations of rape by the accused/respondents. The

statement of the prosecutrix was recorded at 02.30 AM on

29.07.1997 and ruqqa for registration of the case under Section 376

IPC was sent at 02.50 AM. A case under FIR No.559/97 under

Section 376 IPC read with Section 34 IPC was registered at 03.15

AM on 29.07.1997.

4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, the

prosecutrix was medically examined by Dr. Monika. It was noted in

the MLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on the

medial aspects of both the thighs of the prosecutrix. The blouse was

torn along the back of the left sleeve and at the time of preparing

the MLC (Ex.-PW6/A); the clothes of prosecutrix could not be

sealed since she did not have spare clothes. Later her petticoat

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was collected and sent for chemical examination. Upon completion

of investigation, charge sheet was filed against the

accused/respondents.

5. Charges were framed against the accused/respondents under

Section 376(2)(g) IPC to which they pleaded not guilty. To bring

home the guilt of the accused, the prosecution examined seven

witnesses and exhibited number of documents. The

accused/respondents in their statement under Section 313 Cr.P.C.

stated that PW-1-Prosecutrix was of bad character

and she was indulging in prostitution and they have lodged

complaint against her and therefore, they have been falsely

implicated in the rape case.

6. Upon consideration of evidence of PW-1-Prosecutrix and

medical report, forensic report and other evidence, the trial court

convicted accused/respondents under Section 376(2)(g) IPC and

sentenced each of them to undergo rigorous imprisonment for ten

years. Being aggrieved, the accused/respondents filed appeal

before the High Court. In the High Court, the accused/respondents

filed petition under Section 391 Cr.P.C. for taking additional

evidence which was allowed by the High Court. The High Court by

the impugned judgment allowed the appeal by setting aside the

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conviction of the accused/respondents under Section 376(2)(g) IPC.

The High Court held that regarding the ladies quarrel at 07.30 p.m.

on 28.07.1997 involving sex workers including the prosecutrix at

Shaheed Bhagat Singh Jhuggi, FIR No.558/97 was registered and

in connection with the said FIR No.558/97, the prosecutrix and other

ladies were arrested and that they were in custody with the police till

at least 09.30 PM. The High Court therefore doubted the

prosecution case in FIR No.559/97 and held that when the

prosecutrix and other ladies were in custody with the police between

08.50 PM till 10.00 PM on 28.07.1997, it is quite impossible that the

occurrence of rape would have taken place at 09.00 PM on

28.07.1997 as alleged by the prosecutrix.

7. Based upon the Report of Joint Commissioner (Ex.-DW6/A)

and the Report of DCP, the High court directed the Registrar

General of the High Court to make a 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 under Sections 193 and 195 IPC. Being aggrieved by

the remarks made against them and also the direction to lodge a

complaint to initiate prosecution against them, SI Jai Bhagwan (PW-

5

7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-

5) have preferred Criminal Appeal No.2298 of 2009.

8. The learned Additional Solicitor General Mr. Vikaramjit

Banerjee appearing on behalf of appellant Govt. of NCT of Delhi

has submitted that the High Court has failed to appreciate the

evidence of PW-1-Prosecutrix which is corroborated by the medical

evidence and the High Court erred in relying upon the events in FIR

No.558/97 and erred in acquitting the respondents/accused. The

learned Additional Solicitor General further submitted that the High

Court erred in relying upon the report of the Joint Commissioner

(Ex.-DW6/A) and other materials produced at the time of arguments

and the High Court ought not to have proceeded on presumption

and conjectures and erred in not appreciating the evidence and

materials placed on record.

9. The learned senior counsel Mr. Mukul Gupta and Mr. Sanjay

R. Hegde appearing for the appellants-police have taken us through

the evidence and other materials and submitted that the police

officials have correctly investigated the case and without giving an

opportunity of hearing, the High Court was not right in passing

disparaging remarks against the police officials and issuing

directions to lodge a complaint against the appellants-police officials

6
to initiate the prosecution under Sections 193 and 195 IPC which

have very serious consequences and impact on their official career.

10. Though the accused initially engaged a lawyer, in later

hearings of the appeal, they were not represented. Mr. Praveen

Chatruvedi was nominated as the counsel for the respondents

through Supreme Court Legal Services Committee who made

meticulous submissions. Contention of the respondents/accused is

that PW-1-Prosecutrix was in custody of police between 08.50 PM

to 10.00 PM on 28.07.1997 in connection with FIR No.558/97 under

Section 160 IPC and therefore, the alleged offence of gang rape

(FIR No.559/97) could not have been committed by the

respondents/accused in the manner alleged. It is the contention of

the respondents/accused that the police and prosecutrix have

conspired a plot of false rape case implicating the respondents and

the High Court rightly acquitted the accused/respondents and

directed to initiate action against the police.

11. We have carefully considered the submissions of the

respondents/accused and also the appellant/police officials and

perused the impugned judgment and materials on record.

12. PW-1-Prosecutrix has spoken about the occurrence of rape

committed on her that accused/respondent No.2-Gunjesh

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Chaudhary caught hold of her hands and that other three accused

namely Pankaj Chaudhary, Qasim and Jai Lal Yadav had torn her

blouse and committed rape on her and that she raised alarm and

then her mother came there and the accused persons ran away.

Upon consideration of evidence of the prosecutrix, the trial court

held that there is no reason to disbelieve the statement of

prosecutrix where it is sufficiently corroborated by the statement of

Bashira Khatoon, mother of prosecutrix (PW-3) who saw the

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 torn along the back of the left sleeve and bruises measuring 4 ×

4 cm were found on her both thighs”.

14. Contention of the respondents is that when the prosecutrix

was forcibly held by the accused and gang raped, in all probability,

the prosecutrix must have sustained external injuries and absence

of external injuries raises serious doubts about the prosecution

version. The submission of the accused/respondents that the

prosecutrix was not injured, was belied by the presence of bruises

measuring 4 × 4 cm on the medial aspects of both the thighs. The

8
blouse was torn along the back of 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 any event, absence of external

injuries does not tantamount to consent nor does it discredit the

version of prosecutrix.

15. The evidence of the prosecutrix is also corroborated by FSL

Report (Ex.-PW7/G) which shows presence of human semen (Ex.-

1) on the petticoat of the prosecutrix. As per the FSL Report (Ex.-

PW7/G), blood was detected on Exhibits 3S1 (gauze cloth piece

having brown stains labelled ‘Pankaj’); 3S2 (gauze cloth piece

having brown stains labelled ‘Qasim’); and 3S3 (gauze cloth piece

having brown stains labelled ‘Jai Lal’). The result of the biological

report reads as under:-

Exhibits Species ABO Group
of Origin Remarks
3S1 (gauze cloth piece having brown Inconclusive
stains labelled ‘Pankaj’)
3S2 (gauze cloth piece having brown Inconclusive
stains labelled ‘Qasim’)
3S3 (gauze cloth piece having brown ‘B’ Group
stains 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 the

prosecutrix which matches with the blood ‘B’ group of accused Jai

9
Lal (3S3) corroborates the version of the prosecutrix. Of course, the

Serology Report 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. Such disintegration of the sample

does not dilute the version of the prosecutrix.

16. The FSL Report (Ex.-PW7/G) was discarded by the High

Court 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 extra

clothes” which according to the High Court was inconsistent with the

statement of SI Jai Bhagwan (PW-7) that “Duty Constable of the

hospital produced before me two sealed parcels containing

petticoat and slides which was sent to the FSL”. It is pertinent to

note that the prosecutrix was examined by the doctor at 11.45 PM

on 28.07.1997; whereas SI Jai Bhagwan (PW-7) after getting

statement from the doctor as to the fit mental state of prosecutrix

has recorded the statement of the prosecutrix at 02.30 AM on

29.07.1997. In her evidence during cross-examination, the

prosecutrix has stated that the petticoat that she was wearing at the

time of incident was seized by the police. Having regard to the

10
evidence of the prosecutrix, we find no inconsistency between MLC

(Ex.-PW6/A) and the statement of SI Jai Bhagwan (PW-7).

17. Drawing our attention to the evidence of prosecutrix who

submitted that the prosecutrix regained consciousness only at 10.00

AM on 29.07.1997 and while so SI Jai Bhagwan could not have

recorded her statement at around 02.30 AM on 29.07.1997 as

stated by him and this again throws serious doubt about the

prosecution case. The prosecutrix (PW-1) was examined in the

court on 05.11.1999 nearly two years after the occurrence and she

might not have been able to recollect the happenings 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 prosecutrix was fit to make

the statement and only thereafter the statement of prosecutrix (PW-

1) was recorded (Ex.-PW1/A). In the light of the evidence

of SI Jai Bhagwan that the Doctor declared the prosecutrix fit to

make the statement, there is no merit in the contention of the

accused raising doubts about the recording of statement of the

prosecutrix at 02.30 AM on 29.07.1997.

18. On the next day i.e., on 29-07-1997 all the

accused/respondents were arrested by SI Jai Bhagwan (PW-7) and

they were medically examined in the hospital between 11.36 AM to

11
11.38 AM and the doctor opined that “on clinical examination, there

is nothing to suggest that the said accused persons are incapable

of performing sexual intercourse”. The blood samples and the slide

of smear of the accused were also seized and the case property

was deposited in the malkhana from 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 petticoat of the prosecutrix (B

group) which matched with the blood group of the

accused/respondent No.4-Jai Lal Yadav.

19. It is also relevant to refer to the false explanation of the

accused in their statement under Section 313 Cr.P.C. Though the

accused have admitted about their medical examination, in their

statement under Section 313 Cr.P.C. all the accused have given a

false version regarding the manner and time of arrest as after 04.00

PM on 29.07.1997. The statement of the accused that they were

arrested only after 04.00 PM on 29.07.1997 is not consistent with

the materials placed on record that they were medically examined

between 11.36 AM to 11.38 AM on 29.07.1997. The false

explanation by the accused is yet another militating circumstance

against them.

12

20. Further, as pointed out by the trial court, the prosecutrix had

no motive to falsely implicate the accused. In their statement under

Section 313 Cr.P.C., the respondents/accused have stated that the

prosecutrix was of bad character and she was indulging in

prostitution regarding which they have lodged complaint against her

and they have been falsely implicated in the case. As pointed out

by the trial court, nothing was brought on record by the accused to

show that they have lodged complaint against the prosecutrix.

Mahanand Jha (DW-1) stated that he is the President of the jhuggi

area. He further stated that about 7-8 women including the

prosecutrix have been indulging in prostitution regarding which he

has lodged the complaint. There is nothing on record to suggest

that the accused were in any way involved in making such

complaints against the prosecutrix and other women. The version

that they lodged complaint against the prosecutrix and therefore,

they have been falsely implicated in the case, is not substantiated

by any record.

21. The High Court observed that the trial court erred in saying

that the accused failed to prove the making of previous complaints

against the prosecutrix. While saying so, the High Court referred to

certain complaints made against the prosecutrix including the one

13
allegedly given on 21.07.1997 which were produced by the Bar at

the time of arguments. The power conferred under Section 391

Cr.P.C. is to be exercised with great care and caution. In dealing

with any appeal, the appellate court can refer to the additional

evidence only if the same has been recorded as provided under

Section 391 Cr.P.C. Any material produced before the appellate

court to fill-up the gaps by either side cannot be considered by the

appellate court; more so, to reverse the judgment of the trial court.

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

and other women including the one allegedly given on 21.07.1997

just one week prior to the incident. The High Court was not right in

taking into consideration those complaints produced at the time of

arguments in the appeal.

22. As rightly held by the trial court that even if the allegations of

the accused that the prosecutrix is of immoral character are taken to

be correct, the same does not give any right to the accused persons

to commit rape on her against her consent. In State of

Maharashtra and Another v. Madhurkar Narayan Mardikar

(1991) 1 SCC 57, it was held that even a woman of easy virtue is

14
entitled to privacy and it is not open to any person to violate her and

she is equally entitled to protection of law. Further, the evidence of

such a woman cannot be thrown overboard merely because she is

a woman of easy virtue.

23. Even in cases where there is some material to show that the

victim was habituated to sexual intercourse, no inference like the

victim being a woman of ‘loose moral character” is permissible to be

drawn from that circumstance alone. A woman of easy virtue also

could not be raped by a person for that reason. In State of Punjab

v. Gurmeet Singh and Others (1996) 2 SCC 384, it was held as

under:-

“16. ……Even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she has a right to
refuse to submit herself to sexual intercourse to anyone and
everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone……”(Emphasis
supplied) [Underlining added].

While so, the High Court erred in placing reliance upon the

complaints allegedly made against the prosecutrix to doubt her

version and to hold that a false case has been foisted against the

accused.

24. It is now well-settled principle of law that conviction can be

sustained on the sole testimony of the prosecutrix if it inspires

confidence. [Vishnu alias Undrya v. State of Maharashtra (2006)

15
1 SCC 283]. It is well-settled by a catena of decisions of this Court

that there is no rule of law or practice that the evidence of the

prosecutrix cannot be relied upon without corroboration and as such

it has been laid down that corroboration is not a sine qua non for

conviction in a rape case. If the evidence of the victim does not

suffer from any basic infirmity and the ‘probabilities factor’ does not

render it unworthy of credence, as a general rule, there is no reason

to insist on corroboration except from medical evidence, where,

having regard to the circumstances of the case, medical evidence

can be expected to be forthcoming. [State v. N.K. The accused

(2000) 5 SCC 30]

25. The trial court which had the opportunity of seeing and

observing the prosecutrix, found the testimony of the prosecutrix

reliable being corroborated by her mother’s evidence, medical

evidence, FSL report and other circumstances viz. absence of

motive for any false implication etc. While so, the High Court ought

not to have heavily interfered with the verdict of conviction based on

the alleged time gap in the registration of two FIRs and other

aspects of investigation in connection with FIR No.558/97 to reverse

the verdict of conviction.

16

26. The High Court reversed the verdict of conviction mainly on

the ground of difference of timing in the registration of FIR

No.558/97 and other aspects of investigation. At about 08.05 PM, a

telephonic information was received vide DD No.67-B at Police

Station Hauz Khas regarding a quarrel at Shaheed Bhagat Singh

Jhuggi. The specific case of 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 of SI Prem Chand (DW-3), he

reached the spot with one lady constable Ms. Sarla Toppo and

Constable Sagar Chandra (DW-5) at around 08:18 PM and found

the ladies including prosecutrix quarrelling at public place in their

jhuggis and immediately arrested the ladies and conducted

investigation and sent the ruqqa with a constable to register the FIR

under Section 160 IPC. On receipt of information, FIR No.558/97 at

Police Station Hauz Khas was registered at 09.20 PM on

28.07.1997. SI Prem Chand (DW-3) stated about the arrest and

search of four women and then released them on bail bonds and he

was on the spot up to 08:50 PM.

27. The High Court relied on the statement of Head Constable

Ratan Lal (DW-4) that SI Prem Chand (DW-3) has made a

telephonic call at 08:52 PM to know the serial number of the case

17
and because the FIR was registered at 09:20 PM, the High Court

came to the conclusion that the women involved in the FIR

No.558/97 could not have been released before 09:20 PM because

one of the bail bonds contain the said FIR number and also held

that it is highly unlikely for the police to have completed 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 drawn in FIR No.559/97,

the distance between the road and jhuggi is such that it was

impossible for the prosecutrix to come back alone and be in her

jhuggi at 09.00 PM.

28. The occurrence of rape (FIR No.559/97) was at about

09.00 PM regarding which information was received by the same

Police Station Hauz Khas at about 09.30 PM. SI Jai Bhagwan

(PW-7) along with constable Khushi Ram (PW-4) reached the spot

and learnt that the prosecutrix was taken to hospital by PCR Van.

Thereafter, SI Jai Bhagwan (PW-7) along with constable Khushi

Ram (PW-4) went to AIIMS and found the prosecutrix there and he

recorded her statement at 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 at 02.50 AM and case under FIR

18
No.559/97 under Section 376 IPC read with 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 High Court

held that the quarrelling ladies including the prosecutrix were in

custody of the police at least till 08.50 PM and it was highly

improbable that the prosecutrix could have come back and was

alone in her jhuggi at 09.00 PM on 28.07.1997 and that the

respondents/accused entered her jhuggi and committed rape as

alleged by her and that even before 09.30 PM, she was picked up

from there by PCR Van. The High Court therefore concluded that

SI Jai Bhagwan, constable Khushi Ram (PW-4) and the prosecutrix

(PW-1) have fabricated false case against the accused. In this

regard, the High Court relied upon the Report of Joint

Commissioner dated 07.11.2000 (Ex.-DW6/A) and the Report of

S.K. Gautam, DCP.

30. The reasoning of the High Court that the ladies were arrested

in connection with FIR No.558/97 under Section 160 IPC and that

the ladies must have remained with the custody of police till 09.20

PM proceeds on presumptive footing and surmises. In his evidence,

Mahanand Jha (DW-1) has stated that “the said ladies came back

to the area at 08.30 PM and started abusing the neighbourers”.

19
Likewise, Sharabuddin (DW-2) has stated that “the police released

the said ladies including Phoola (PW-1) and after coming back to

her jhuggi, she started abusing the neighbours. Then, I informed

PCR Van on telephone and PCR Van came and took Phoola……..”.

The High Court failed to appreciate the testimonies of DWs 1 and 2

who have categorically stated that the prosecutrix had come back

and was abusing neighbours. The evidence of DWs 1 and 2 clearly

shows that the prosecutrix 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 at 09.20 PM does not indicate that

the prosecutrix and other quarrelling ladies were in the police

custody till 09.30 PM on 28.07.1997 (with respect to the offence in

FIR No.558/97).

31. There were two sets of persons and two sets of officers are

involved in FIR No.558/97 and FIR No.559/97. The aspect

regarding FIR No.558/97 was not put to the witnesses

even before the trial court. Everything was brought about in appeal

as additional evidence in exercise of the power of the appellate

court under Section 391 Cr. P.C. Placing of heavy reliance by the

High Court upon the contents in FIR No.558/97 was not a correct

approach.

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32. Unfortunately, the High Court was swayed by the

Departmental Enquiry Report (Ext.-DW6/A) prepared by Joint

Commissioner of Police that was brought on record by Constable

Dharamvir Singh (DW-6). Going through the entire report, we

observe that the departmental enquiry was primarily based on the

diary entries and the statements of one complainant Amod Shastri

and statement of ASI Kamal Dev. In the report, Joint

Commissioner of Police, inter-alia concluded that the rape incident

could not have happened at 09.00 PM while SI Prem Chand (DW-3)

indicated that quarrelling ladies including the prosecutrix were

released at 08.50 PM. It is pertinent to note that neither S.K.

Gautam, Deputy Commissioner of Police was examined nor the

said complainant Amod Shastri and ASI Kamal Dev were examined.

Yet the High Court relied on it to come to a conclusion that the rape

incident could not have happened at the alleged time and manner.

33. ASI Kamal Dev who took the prosecutrix to the hospital in

PCR Van is said to have made the statement before the Deputy

Commissioner of Police stating that when he questioned the

prosecutrix, she was conscious and that she told him that she had

been beaten up and has not stated anything about the alleged

incident of rape. In our view, the High Court was not right in placing

21
heavy reliance upon the report of the Joint Commissioner and the

report of Deputy Commissioner who 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 made

disparaging remarks against the police officials and directed

prosecution against the police under Sections 193 and 195 IPC.

The police officials were neither party nor summoned by the High

Court before making such disparaging remarks and giving directions

against them in the appeal against the conviction. On behalf of the

police officials, it is submitted that the conclusions drawn by the

High Court are based on mere surmises and presumptions. The

High Court further relied on the Departmental Enquiry Report (Ex.-

DW6/A) which was not put to test and the maker of the report was

not examined which therefore has no evidentiary value in the eyes

of law.

35. While passing disparaging remarks against the police officials

and directing prosecution against them, in our considered view, the

High Court has failed to bear in mind the well settled principles of

law that should govern the courts before making disparaging

remarks. Any disparaging remarks and direction to initiate

22
departmental action/prosecution against the persons whose

conduct comes into consideration before the court would have

serious impact on their official career. In S.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 a
hearing………….”.

13. We have also to point out a grievous procedural error
committed by the High Court. Even assuming for argument’s sake
that for expunging the remarks against Respondents 2 and 3 the
conduct of the appellant required scrutiny and merited adverse
comment, the principles of natural justice required the High Court to
have issued notice to the appellant and heard him before passing
adverse remarks against him if it was considered necessary. By its
failure the High Court has failed to render elementary justice to the
appellant.

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 the
administration of justice, it is this: the proper freedom
and independence of Judges and Magistrates must be
maintained and they must be allowed to perform their
functions freely and fearlessly and without undue
interference by anybody, even by this Court. At the
same time, it is equally necessary that in expressing
their opinions Judges and Magistrates must be guided
by considerations of justice, fair play and restraint. It is
not infrequent that sweeping generalisations defeat
the very purpose for which they are made. It has been
judicially recognised that in the matter of making
disparaging remarks against persons or authorities
whose conduct comes into consideration before
courts of law in cases to be decided by them, it is
relevant to consider (a) whether the party whose
conduct is in question is before the court or has an
opportunity of explaining or defending himself; (b)
whether there is evidence on record bearing on that
conduct justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an integral
part thereof, to animadvert on that conduct. It has also
been recognised that judicial pronouncements must

23
be judicial in 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 Niranjan Patnaik v.

Sashibhusan Kar and Another (1986) 2 SCC 569 (to which one of
us was a party). Judged in the light of the above tests, 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 a very serious nature affecting the character and
professional competence and integrity of the appellant in purported
desire to render justice to Respondents 2 and 3 in the petition filed
by them for expunction of adverse remarks made against them.”
[Underlining added].

36. In Manish Dixit and Others v. State of Rajasthan (2001) 1

SCC 596, this Court held as under:-

“42. ………Such disparaging remarks and the direction to initiate
departmental action against him could have a very serious impact
on his official career.

43. Even those apart, this Court has repeatedly cautioned that
before any castigating remarks are made by the court against any
person, particularly when such remarks could ensure serious
consequences on the future career of the person concerned, he
should have been given an opportunity of being heard in the matter
in respect of the proposed remarks or strictures. Such an
opportunity is the basic requirement, for, otherwise the offending
remarks 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 AIR 1964 SC 703,
Ch. Jage Ram, Inspector of Police and Another v. Hans Raj Midha
(1972) 1 SCC 181, R.K. Lakshmanan v. A.K. Srinivasan and
Another (1975) 2 SCC 466, Niranjan Patnaik v. Sashibhusan Kar
and Another (1986) 2 SCC 569 and State of Karnataka v. Registrar
General, High Court of Karnataka (2000) 7 SCC 333).”
[Underlining added]

Since the High Court has passed strictures against the police

officials who were involved in the investigation in FIR No.559/1997

without affording an opportunity of hearing to them, the disparaging

remarks are liable to be set aside.

24

37. Insofar as the direction to initiate the prosecution under

Sections 193, 195 and 211 IPC is concerned, Section 340 Cr.P.C.

provides the procedure for offences enumerated in Section 195(1)

(b) Cr.P.C. The object of Section 340 Cr.P.C. is to ascertain

whether any offence affecting administration of justice has been

committed in relation to any document produced or evidence given

in court during the time when the document or evidence was in

custodian legis and whether it is also expedient in the interest of

justice to take such action as required under Section 340 Cr.P.C.

38. Before directing the prosecution to be initiated under Section

195 Cr.P.C., the court has to follow the procedure under Section

340 Cr.P.C. and record a finding that “it is expedient in the

interest of justice……..”. Though wide discretion is given to court

under Section 340 Cr.P.C., the same has to be exercised with care

and caution. To initiate prosecution under Section 195 Cr.P.C too

readily that too against the police officials who were conducting the

investigation may not be a correct approach. Contention of the

learned counsel for the police officials is that before passing the

direction to initiate the prosecution for the offences under Sections

193, 195 and 211 IPC, the High Court ought to have followed the

procedure contemplated under Section 340(1) Cr.P.C.

25

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, any Court
is of opinion that it is expedient in the interests of justice that an
inquiry should be made into any offence referred to in Clause (b) of
sub-section (1) of Section 195, which appears to have been
committed in or in relation to a proceeding in that Court or, as the
case may be, in respect of a document produced or given in
evidence in a proceeding in that Court, such Court may, after such
preliminary inquiry, if any, as it thinks necessary-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having
jurisdiction;

(d) take sufficient security for the appearance of the accused
before such Magistrate, or if the alleged offence is non-
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
before such Magistrate.

There are two preconditions for initiating proceedings under Section

340 Cr. P.C. :

(i) materials produced before the court must make
out a prima-facie case for a complaint for the
purpose of inquiry into an offence referred to in
clause (b)(i) of sub-section (1) of Section 195
Cr.P.C. and

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

40. Observing that the court has to be satisfied as to the prima-

facie case for a complaint for the purpose of inquiry into an offence

under Section 195(1)(b) Cr.P.C., this Court in Amarsang Nathaji

as himself and as karta and manager v. Hardik Harshadbhai

Patel and Others (2017) 1 SCC 113 held as under:-

26
“6. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always sufficient to
justify a prosecution under Sections 199 and 200 of the Penal
Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it
must be shown that the defendant has intentionally given a false
statement at any stage of the judicial proceedings or fabricated
false evidence for the purpose of using the same at any stage of
the judicial proceedings. Even after the above position has
emerged also, still the court has to form an opinion that it is
expedient in the interests of justice to initiate an inquiry into the
offences of false evidence and offences against public justice and
more specifically referred to in Section 340(1) CrPC, having regard
to the overall factual matrix as well as the probable consequences
of such a prosecution. (See K.T.M.S. Mohd. and Another v. Union
of India (1992) 3 SCC 178). The court must be satisfied that such
an inquiry is required in the interests of justice and appropriate in
the facts of the case.

7. In the process of formation of opinion by the court that it is
expedient in the interests of justice that an inquiry should be made
into, the requirement should only be to have a prima facie
satisfaction of the offence which appears to have been committed.
It is open to the court to hold a preliminary inquiry though it is not
mandatory. In case, the court is otherwise in a position to form such
an opinion, that it appears to the court that an offence as referred to
under Section 340 CrPC has been committed, the court may
dispense with the preliminary inquiry. Even after forming an opinion
as to the offence which appears to have been committed also, it is
not mandatory that a complaint should be filed as a matter of
course. (See Pritish v. State of Maharashtra and Others (2002) 1
SCC 253)

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

“23. In view of the language used in Section 340 CrPC
the court is not bound to make a complaint regarding
commission of an offence referred to in Section 195(1)

(b), as the section is conditioned by the words “court
is of opinion that it is expedient in the interests of
justice”. This shows that such a course will be adopted
only if the interest of justice requires and not in every
case. Before filing of the complaint, the court may hold
a preliminary enquiry and record a finding to the effect
that it is expedient in the interests of justice that
enquiry should be made into any of the offences
referred to in Section 195(1)(b). This expediency will
normally be judged by the court by weighing not the
magnitude of injury suffered by the person affected by
such forgery or forged document, but having regard to
the effect or impact, such commission of offence has
27
upon administration of justice. It is possible that such
forged document or forgery may cause a very serious
or substantial injury to a person in the sense that it
may deprive him of a very valuable property or status
or the like, but such document may be just a piece of
evidence produced or given in evidence in court,
where voluminous evidence may have been adduced
and the effect of such piece of evidence on the broad
concept of administration of justice may be minimal. In
such circumstances, the court may not consider it
expedient in the interest of justice to make a
complaint.”

The same principle was reiterated in Chintamani Malviya v. High

Court of Madhya Pradesh (2018) 6 SCC 151.

41. It has been consistently held by this Court that prosecution for

perjury be sanctioned by the courts only in those cases where

perjury appears to be deliberate and that prosecution ought to be

ordered where it would be expedient in the interest of justice to

punish the delinquent and not merely because there is some

inaccuracy in the statement. In Chajoo Ram v. Radhey Shyam

and Another (1971) 1 SCC 774, this Court held as under:-

“7. The prosecution for perjury should be sanctioned by courts only
in those cases where the perjury appears to be deliberate and
conscious and the conviction is reasonably probable or likely. No
doubt giving of false evidence and filing false affidavits is an evil
which must be effectively curbed with a strong hand but to start
prosecution for perjury too readily and too frequently without due
care and caution and on inconclusive and doubtful material defeats
its very purpose. Prosecution should be ordered when it is
considered expedient in the interests of justice to punish the
delinquent and not merely because there is some inaccuracy in the
statement which may be innocent or immaterial. There must be
prima facie case of deliberate falsehood on a matter of substance
and the court should be satisfied that there is reasonable
foundation for the charge. In the present case we do not think the
material brought to our notice was sufficiently adequate to justify
the conclusion that it is expedient in the interests of justice to file a

28
complaint. The approach of the High Court seems somewhat
mechanical and superficial: it does not reflect the requisite judicial
deliberation….”

42. By perusal of the impugned judgment of the High Court, we

find that the High Court has not recorded a finding that “it is

expedient in the interest of justice to initiate an inquiry into the

offences punishable under Sections 193 and 195 IPC against the

police officials and under Section 211 IPC against the prosecutrix”.

Without affording an opportunity of hearing to the police officials

and based on the materials produced before the appellate court,

the High Court, in our view, was not right in issuing direction to the

Registrar General to lodge a complaint against the police officials

and the said direction is liable to be set aside.

43. The High Court erred in brushing aside the evidence of the

prosecutrix by substituting its views on the basis of submissions

made on the sequence of events in FIR No.558/97 and the report of

the Joint Commissioner of Police (Ex.-DW6/A) and the report of the

Deputy Commissioner of Police. The High Court erred in taking into

consideration the materials produced before the appellate court viz.,

the alleged complaints made against the prosecutrix and other

women alleging that they were engaged in prostitution. Even

assuming that the prosecutrix was of easy virtue, she has a right of

refuse to submit herself to sexual intercourse to anyone. The
29
judgment of the High Court reversing the verdict of conviction under

Section 376(2)(g) recorded by the trial court cannot be sustained

and is liable to be set aside.

44. For the conviction under Section 376(2)(g) IPC, the accused

shall be punished with rigorous imprisonment for a term which shall

not be less than ten years, but which may be extended to

imprisonment for life. After the amendment by Act 13 of 2013 (with

retrospective effect from 03.02.2013), the minimum sentence of ten

years was increased to twenty years as per Section 376-D and in

the case of conviction, the court has no discretion but to impose the

sentence of minimum twenty years. However, prior to amendment,

proviso to Section 376(2) IPC provided a discretion to the court 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 ten years.” Though the court is vested with the discretion,

in the facts and circumstances of the case, we are not inclined to

exercise our discretion in reducing the sentence of imprisonment of

ten years imposed upon the respondents-accused.

45. In the result, the impugned judgment of the High Court is set

aside and the appeal preferred by the State is allowed. The verdict

of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009)

30
under Section 376(2)(g) IPC and also the sentence of imprisonment

of ten years imposed upon them is affirmed. The respondents-

accused Nos.1 to 4 shall surrender themselves within a period of

four weeks from today to serve the remaining sentence, failing

which they shall be taken into custody. We place on record the

valuable assistance rendered by the counsel Mr. Praveen

Chaturvedi who has been nominated by the Supreme Court Legal

Services Committee to argue on behalf of the respondents/accused.

46. The direction of the High Court to lodge complaint against the

police officials (appellants in Criminal Appeal No.2298 of 2009) is

set aside and the appeal preferred by them is allowed.

…………….……………J.

[R. BANUMATHI]

…………….……………J.

[INDIRA BANERJEE]

New Delhi;

October 30, 2018

31

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