Santosh Prasad @ Santosh Kumar vs The State Of Bihar on 14 February, 2020


Supreme Court of India

Santosh Prasad @ Santosh Kumar vs The State Of Bihar on 14 February, 2020

Author: M.R. Shah

Bench: Ashok Bhushan, M.R. Shah

                                                                    REPORTABLE
                                     IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION
                                     CRIMINAL APPEAL NO. 264 OF 2020
                                     (Arising out of SLP(Criminal) No.3780/2018)



         SANTOSH PRASAD @ SANTOSH KUMAR                                   …APPELLANT


                                           VERSUS

         THE STATE OF BIHAR                                               …RESPONDENT




                                                 JUDGMENT

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order

dated 7.2.2018 passed by the High Court of Judicature at Patna in Criminal

Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal

preferred by the original accused and has confirmed the judgment and order of

conviction passed by the learned Sessions Court convicting the accused for the
Signature Not Verified

offences punishable under Sections 376(1) and 450 of the IPC, the original
Digitally signed by
MEENAKSHI KOHLI
Date: 2020.02.14
16:31:40 IST
Reason:

accused has preferred the present appeal.

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2. That the appellant herein – original accused was tried by the learned

Sessions Court for the offences punishable under Sections 376(1) and 450 of the

IPC. A written complaint was filed by the prosecutrix – PW5 on 16.09.2011

before the local police station against the accused alleging, inter alia, that in the

preceding night at about 11:00 p.m. she awaken after hearing some sound and

whereupon in the light of the mobile phone she found the accused – brother of

her husband whereupon she made query. Instead of giving any reply, he

committed the rape upon her. According to the prosecution and as per the

prosecutrix, thereafter the accused ran away and after getting an opportunity she

raised alarm and the neighbours came there including one Suman Devi, her

cousin Gotini as well as Shanti Devi, her cousin mother-in-law. She disclosed

the event/incident to them. According to the prosecutrix, she informed her

mother-in-law and father-in-law who were at Gaya. At the time of incident, her

husband was away from the village. Thereafter on their arrival she came to the

police station along with them and submitted written report. FIR was registered

against the accused being P.S. Case No. 325/2011. Investigation was carried out

by the officer in-charge of Makhdumpur Police Station. He recorded the

statement of the concerned witnesses. The clothes/apparels of the prosecutrix

were seized and were sent to FSL. He also collected the medical report from

Dr. Renu Singh, PW7, who examined the victim. Thereafter on conclusion of

the investigation, the Investigating Officer filed the chargesheet against the

accused for the offences punishable under Sections 376(1) and 450 of the IPC.

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As the case was triable by the Court of Sessions, the learned Magistrate

committed the case to the Sessions Court which was transferred to the Court of

learned Additional Sessions Judge, Ist, Jehanabad, which was numbered as

Sessions Trial No. 456 of 2011/90/2012. The accused pleaded not guilty and

therefore he came to be tried by the learned Sessions Court for the aforesaid

offences.

2.1 To prove the charge, the prosecution examined in all eight witnesses

including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7).

Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the

prosecution and therefore were declared hostile. The prosecution also brought

on record the FIR, Injury Report and FSL Report. After closure of the evidence

of the prosecution, further statement of the accused under Section 313, Cr.P.C.

was recorded. The case of the accused was of total denial. Thereafter, on

appreciation of evidence on record, the learned trial Court held the accused

guilty for the offences under Sections 376(1) and 450 of the IPC. The learned

trial Court sentenced the accused to undergo 10 years R.I. for the offence under

Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the

IPC.

2.2 Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence passed by the learned trial Court, the accused preferred

an appeal before the High Court. By the impugned judgment and order, the

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High Court has dismissed the said appeal. Hence, the accused has preferred the

present appeal.

3. Shri Santosh Kumar, learned Advocate appearing on behalf of the original

accused has vehemently submitted that in the facts and circumstances of the

case both the courts below have materially erred in convicting the accused for

the offences under Sections 376 and 450 of the IPC.

3.1 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that the courts below have not

properly appreciated the fact that as such the medical report does not support

the case of the prosecutrix/prosecution. It is submitted that the evidence of the

prosecutrix is not supported by the medical evidence since no stains of semen or

blood were found on the clothes of the prosecutrix. It is submitted therefore

that it creates serious doubt about the credibility of the prosecutrix.

3.2 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that there was a delay in

lodging/reporting the case to the police.

3.3 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that both the courts below have not

properly appreciated the fact that there was a family enmity between the

accused and the family of the prosecutrix with respect to the land dispute. It is

submitted that no independent witnesses have been examined by the

prosecution. It is submitted that as there was a dispute between the accused and

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the family members of the prosecutrix, non-examination of the material

independent witnesses, the case of the prosecution suffers from serious doubts.

3.4 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that as per the doctor and the

medical report/injury report, no injury was found on the person of the victim

and private parts especially. It is submitted that therefore in the absence of any

injury the story put forth by the prosecutrix/prosecution is not believable.

3.5 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that except the deposition/evidence

of the prosecutrix which has not been corroborated by the medical evidence,

there is no other independent and cogent evidence to connect the accused with

the guilt.

3.6 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that even the doctor has

categorically said that there is no physical or pathological evidence of rape.

3.7 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that even in the FSL

report/serological report of the blood and semen allegedly found on the petticoat

of the prosecutrix was inconclusive. It is submitted that therefore the

serological report of blood and semen, allegedly found on the petticoat of the

prosecutrix, does not help the prosecution.

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3.8 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that even there are material

contradictions in the deposition of the prosecutrix. It is submitted that the

prosecutrix has deposed during trial that she had given an oral statement before

the police whereas the FIR has been lodged on the written report and the scribe

has neither been examined nor produced before the Investigating Officer.

3.9 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that even there is a material

contradiction with respect to lodging of the FIR/the written report. It is

submitted that as per the prosecutrix she had gone to the police station at 10

O’clock and the police had enquired at 10 O’clock. However, the FIR is

registered at 4:00 p.m. It is submitted that therefore it appears that earliest

version has been suppressed and therefore the FIR is hit by Section 162 Cr.P.C.

3.10 It is further submitted by Shri Santosh Kumar, learned Advocate

appearing on behalf of the original accused that even the story put forth by the

prosecutrix in her evidence that she had seen the accused jumping the fallen

boundary wall and when she shouted the accused pushed towel in her mouth

and she identified him in mobile light is not believable at all. It is submitted

that even according to the prosecutrix she was sleeping in her room having door

closed. Thus, she will not be able to see any person doing any act outside room.

It is submitted that neither the number of the mobile nor even the mobile is

produced before the investigating officer.

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3.11 It is further submitted that therefore when the conviction is based on the

sole testimony of the prosecutrix and the medical evidence does not support the

case of the prosecution/prosecutrix and the deposition of the prosecutrix is full

of material contradictions and that there was already a dispute between the

accused and the family members of the prosecutrix and no independent

witnesses have been examined, it is not safe to convict the accused solely on

such testimony of the prosecutrix. In support of the above submission, learned

counsel has heavily relied upon the decisions of this Court in the cases of Raju

and others v. State of Madhya Pradesh (2008) 15 SCC 133 as well as Rai

Sandeep alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21.

3.12 Making the above submissions and further relying upon the decisions of

this Court in the cases of Mukesh v. State of Chhattisgarh (2014) 10 SCC 327 as

well as Ravindra v. State of Madhya Pradesh (2015) 4 SCC 491, it is prayed to

allow the present appeal and quash and set aside the impugned judgment and

order passed by the High Court as well as the learned Sessions Court and acquit

the accused for the offences for which he was tried and convicted by the learned

Sessions Court, confirmed by the High Court.

4. The present appeal is vehemently opposed by Shri Keshav Mohan,

learned Advocate appearing on behalf of the State of Bihar.

4.1 It is vehemently submitted by the learned Advocate appearing on behalf

of the respondent – State that in the present case the prosecutrix has fully

supported the case of the prosecution. It is submitted that as observed by this

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Court in the cases of Ranjit Hazarika v. State of Assam (1998) 8 SCC 635 as

well as State of Punjab v. Gurmeet Singh & others (1996) 2 SCC 384, the courts

must, while evaluating evidence, remain alive to the fact that in a case of rape,

no self-respecting woman will come forward in a court just to make a

humiliating statement against her honour such as is involved in the commission

of rape on her.

4.2 Relying upon the decision of this Court in the case of Raju & others

(supra), it is submitted that as observed and held by this Court that ordinarily

the evidence of a prosecutrix should not be suspected and should be believed

and if the evidence is reliable, no corroboration is necessary.

4.3 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that even otherwise in the present case the petticoat of the

prosecutrix was sent to FSL and the petticoat was having the blood as well as

semen stains. It is submitted that therefore the FSL report discloses that the

victim/prosecutrix was subjected to rape and it also discloses the involvement of

the accused.

4.4 Relying upon the decision of this Court in the case of Rajendra

Pralhadrao Wasnik v. State of Maharashtra, it is vehemently submitted by the

learned counsel appearing on behalf of the State that as held by this Court that

merely because the FSL report is inconclusive, it is not necessary that the

irresistible conclusion is only one that the accused is not guilty.

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4.5 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that mere absence of spermatozoa cannot discredit the

testimony of the prosecutrix, as she was examined by the lady doctor almost

after 36 hours from the date of occurrence.

4.6 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that even the lady doctor, PW7 has also opined that

possibility of rape cannot be ruled out. It is submitted that as held by this Court

in the case of B.C. Deva v. State of Karnataka (2007) 12 SCC 122 that in spite

of the fact that no injuries were found on the person of the prosecutrix, yet the

prosecutrix can be relied upon.

4.7 It is further submitted by the learned Advocate appearing on behalf of the

respondent – State that prosecutrix is an adult lady of full understanding. It is

submitted that therefore merely because during the medical examination doctor

did not find any external or internal injury on the body of the prosecutrix, her

statement cannot be discarded. It is submitted therefore that in the facts and

circumstances of the case, no error has been committed by both the courts

below in convicting the accused for the offences under Sections 376 and 450 of

the IPC.

4.8 Making the above submissions and relying upon the aforesaid decisions

of this Court, it is prayed to dismiss the present appeal.

5. We have heard the learned counsel for the respective parties at length.

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5.1 We have considered in detail the impugned judgments and orders passed

by the High Court as well as that of the learned trial Court convicting the

accused. We have also considered in detail the evidence on record, both oral as

well as documentary.

5.2 From the impugned judgments and orders passed by both the courts

below, it appears that the appellant has been convicted solely relying upon the

deposition of the prosecutrix (PW5). Neither any independent witness nor even

the medical evidence supports the case of the prosecution. From the deposition

of PW1, it has come on record that there was a land dispute going on between

both the parties. Even in the cross-examination even the PW5 – prosecutrix had

admitted that she had an enmity with Santosh (accused). The prosecutrix was

called for medical examination by Dr. Renu Singh – Medical Officer and PW7 –

Dr. Renu Singh submitted injury report. In the injury report, no sperm as well

as RBC and WBC were found. Dr. Renu Singh, PW7 – Medical Officer in her

deposition has specifically opined and stated that she did not find any violence

marks on the body of the victim. She has also categorically stated that there is

no physical or pathological evidence of rape. It is true that thereafter she has

stated that possibility of rape cannot be ruled out (so stated in the examination-

in-chief). However, in the cross-examination, she has stated that there was no

physical or pathological evidence of rape.

5.3 As per the FSL report, the blood group on the petticoat and the semen on

the petticoat are stated to be inconclusive. Therefore, the only evidence

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available on record would be the deposition of the prosecutrix. It cannot be

disputed that there can be a conviction solely based on the evidence of the

prosecutrix. However, the evidence must be reliable and trustworthy.

Therefore, now let us examine the evidence of the prosecutrix and consider

whether in the facts and circumstances of the case is it safe to convict the

accused solely based on the deposition of the prosecutrix, more particularly

when neither the medical report/evidence supports nor other witnesses support

and it has come on record that there was an enmity between both the parties.

5.4 Before considering the evidence of the prosecutrix, the decisions of this

Court in the cases of Raju (supra) and Rai Sandeep @ Deepu, relied upon by he

learned Advocate appearing on behalf of the appellant-accused, are required to

be referred to and considered.

5.4.1 In the case of Raju (supra), it is observed and held by this Court in

paragraphs 11 and 12 as under:

“11. It cannot be lost sight of that rape causes the greatest distress and
humiliation to the victim but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the accused as well. The
accused must also be protected against the possibility of false implication,
particularly where a large number of accused are involved. It must, further, be
borne in mind that the broad principle is that an injured witness was present at
the time when the incident happened and that ordinarily such a witness would
not tell a lie as to the actual assailants, but there is no presumption or any basis
for assuming that the statement of such a witness is always correct or without
any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996
SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the
Penal Code making the penal provisions relating to rape more stringent, and

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also to Section 114-A of the Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex in a case of alleged rape. It
is however significant that Sections 113-A and 113-B too were inserted in the
Evidence Act by the same amendment by which certain presumptions in cases
of abetment of suicide and dowry death have been raised against the accused.
These two sections, thus, raise a clear presumption in favour of the
prosecution but no similar presumption with respect to rape is visualised as the
presumption under Section 114-A is extremely restricted in its applicability.
This clearly shows that insofar as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of an injured witness
whose presence at the spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel truth. Additionally,
her statement can, at best, be adjudged on the principle that ordinarily no
injured witness would tell a lie or implicate a person falsely. We believe that it
is under these principles that this case, and others such as this one, need to be
examined.”

5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an

occasion to consider who can be said to be a “sterling witness”. In paragraph

22, it is observed and held as under:

“22 In our considered opinion, the “sterling witness” should be of a very high
quality and calibre whose version should, therefore, be unassailable. The court
considering the version of such witness should be in a position to accept it for
its face value without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would be more
relevant would be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the initial statement
and ultimately before the court. It should be natural and consistent with the
case of the prosecution qua the accused. There should not be any prevarication
in the version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever strenuous it may
be and under no circumstance should give room for any doubt as to the factum
of the occurrence, the persons involved, as well as the sequence of it. Such a
version should have co-relation with each and every one of other supporting
material such as the recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The said version
should consistently match with the version of every other witness. It can even
be stated that it should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence alleged against him.

Only if the version of such a witness qualifies the above test as well as all

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other such similar tests to be applied, can it be held that such a witness can be
called as a “sterling witness” whose version can be accepted by the court
without any corroboration and based on which the guilty can be punished. To
be more precise, the version of the said witness on the core spectrum of the
crime should remain intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version in material
particulars in order to enable the court trying the offence to rely on the core
version to sieve the other supporting materials for holding the offender guilty
of the charge alleged.”

5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC

130, it is observed and held by this Court that no doubt, it is true that to hold an

accused guilty for commission of an offence of rape, the solitary evidence of the

prosecutrix is sufficient provided the same inspires confidence and appears to be

absolutely trustworthy, unblemished and should be of sterling quality.

5.5 With the aforesaid decisions in mind, it is required to be considered,

whether is it safe to convict the accused solely on the solitary evidence of the

prosecutrix? Whether the evidence of the prosecutrix inspires confidence and

appears to be absolutely trustworthy, unblemished and is of sterling quality?

6. Having gone through and considered the deposition of the prosecutrix, we

find that there are material contradictions. Not only there are material

contradictions, but even the manner in which the alleged incident has taken

place as per the version of the prosecutrix is not believable. In the examination-

in-chief, the prosecutrix has stated that after jumping the fallen compound wall

accused came inside and thereafter the accused committed rape. She has stated

that she identified the accused from the light of the mobile. However, no

mobile is recovered. Even nothing is on record that there was a broken

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compound wall. She has further stated that in the morning at 10 O’clock she

went to the police station and gave oral complaint. However, according to the

investigating officer a written complaint was given. It is also required to be

noted that even the FIR is registered at 4:00 p.m. In her deposition, the

prosecutrix has referred to the name of Shanti Devi, PW1 and others. However,

Shanti Devi has not supported the case of the prosecution. Therefore, when we

tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has

failed to pass any of the tests of “sterling witness”. There is a variation in her

version about giving the complaint. There is a delay in the FIR. The medical

report does not support the case of the prosecution. FSL report also does not

support the case of the prosecution. As admitted, there was an enmity/dispute

between both the parties with respect to land. The manner in which the

occurrence is stated to have occurred is not believable. Therefore, in the facts

and circumstances of the case, we find that the solitary version of the

prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the

absence of any other supporting evidence, there is no scope to sustain the

conviction and sentence imposed on the appellant and accused is to be given the

benefit of doubt.

6. In view of the above and for the reasons stated above, the appeal is

allowed. The impugned judgment and order of conviction and sentence passed

by the learned trial Court and confirmed by the High Court are hereby quashed

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and set aside. The appellant is acquitted from all the charges levelled against

him and he be set at liberty forthwith, if not required in any other case.

……………………………………J.

                                        [ASHOK BHUSHAN]


NEW DELHI;                              …………………………………..J.
FEBRUARY 14, 2020.                      [M.R. SHAH]




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