Compendium - Prosecution

THIRD NATIONAL CRIMINAL VIRTUALMOOT COURT COMPETITION,
2022
Compendium
Of the Cases Cited
On behalf of the Prosecution in the matter of
State ............................................................................................ Prosecutor
v.
Rakesh Kumar & Ors ................................................................. Accused
1
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Page 2 Monday, October 31, 2022
2001 SCC OnLine Pat 968 : 2003 Cri LJ 392
Patna High Court

(BEFORE INDU PRABHA SINGH , J.)
Satendra Kumar Singh Kushwaha … Appellant;

Versus
The State of Bihar … Respondent.
Crl. Appeal No. 320 of 1999 (S.J.)
Decided on January 23, 2001
Page: 393
JUDGMENT
1. The sole appellant has been convicted under Ss. 366-A and 376 of the Penal
Code, 1860 and has been sentenced to undergo rigorous imprisonment for 7 years
under Section 366-A of the Penal Code, 1860 and 9 years under S. 376 of the Penal
Code, 1860. Both the sentences were ordered to run concurrently.
2. The prosecution case, in brief, is that on 6-8-1997 the informant, Seema Kumari,
at about 3 P.M. had gone to purchase Tobacco and after purchasing the Tobacco she
was returning to her house, in way appellant Satendra Kumar Singh Kushwaha caught
her hand and took her to the house of Piduli Mahto and confined her. It is also alleged
that he gauged her mouth and in the night the appellant took Seema Kumari in an
orchard where he stayed with her and in the next morning he proceeded to village
Barasi and he took her to the house of Kameshwar Mahto in Village Barasi and he
committed rape with Seema Kumari in the night and he kept Seema Kumari to the
house of Kameshwar Mahto for three days. Thereafter, he brought Seema Kumari in
the house of Mohan Mahto at Village Jagjiwanapur and he kept her in the house of
Mohan Mahto for one day and thereafter on Saturday he brought Seema Kumari to
Tarari in the house of Umesh Kahar where the people caught them and brought them
to Tarari police station where fardbeyan of the informant Seema Kumari was recorded
on the basis of which a case was instituted. The informant (victim girl) was sent to
Arrah hospital for her treatment, where she was medically examined. The case was
thoroughly investigated and ultimately charge-sheet was submitted. Subsequently the
trial concluded with the result as stated above.
3. The appellant pleaded not guilty nd has denied the entire occurrence as alleged
by the prosecution.
4. The prosecution in order to prove its case has examined altogether 7 witnesses
including the informant (P.W. 5). P.W. 1 Ram Ashish Rai, is the grand-father of the
informant. P.W. 2, is Nand Kumar Rai. P.W. 3, Rajendra Rai is the father of the
informant Seema Kumari. P.W. 4 is Tilakdhari Rai. P.W. 6, Umesh Kahar, is a hostile
witness. P.W. 7 is Dr. Vijay Lakshmi Sharma and P.W. 8 is Saiyed Irshad Ali, I.O. of
this case.
5. P.W. 5 the informant victim girl has stated that she was inticed away by the
appellant, Satendra Kumar Singh Kushwaha, at 3 P.M. and the appellant had kept her
for three days in the house of Kameshwar Mahto at Village Barasi and he committed
2
rape with the victim girl and when she narrated the story of her inticement and rape to
Kameshwar Mahto, he drove them away from his house then she was taken to the
house of Mohan Mahto at Village-Jagjiwanpur and she was kept there for one day
where also appellant committed rape with her. She has further stated that in the
village of Mohan Mahto a girl of her Village has been married, so she narrated the story
of her rape and kidnapping to the father-in-law of that lady then he drove away the
appellant and victim girl from his house. Thereafter, the appellant took the victim girl
to Village Tarari where she had narrated the story of her inticement and rape to Umesh
Kahar, then Umesh Kahar went to Tarari police station and gave information to Tarari
Police then the Tarari Police came to the house of Umesh Kahar and brought appellant
and Seema Kumari to Tarari police station where the victim girl narrated the entire
story of her inticement and rape by the appellant. Thereafter the police recorded the
fardbeyan.
6. P.Ws. 2 and 3 have fully supported the case of the prosecution as alleged by the
victim girl.
7. P.W. 1 has supported the evidence of the victim girl (P.W. 5) to the effect that it
is he, who had sent the victim girl for purchasing Khaini (Tobacco) at 3 p.m. at the
relevant date but the victim girl did not return. Then he told his son P.W. 3 and he
made a search of the victim girl and after a lapse of four days the Chaukidar of Tarari
police station came to him and informed that his grand-daughter was at Tarari police
station along with appellant. Then he went to Tarari police station where he saw t he
victim girl and came to know from her that appellant had kidnapped her by inducing
her and appellant had kept her in the house of several persons and the appellant
committed rape upon her.
Page: 394
8. P.W. 2 has also corroborated the evidence of the victim girl (P.W. 5) to the effect
that the appellant had kidnapped her for 3 to 4 days. He had kept her at several
places.
9. P.W. 3 who is the father of the victim girl (P.W. 5) has stated in his evidence that
he made search for her daughter on 5-8-1997 in the evening and came to know that
her daughter and appellant had fled away. P.W. 6 though in his evidence has not
supported the prosecution case and became hostile but the I.O., P.W. 8 has stated in
his evidence that P.W. 6 had stated before him that the appellant had brought a girl to
his house and that victim girl had also told him that appellant had inticed her away
and had committed rape with her then only this witness went to Tarari police station
to give information to Tarari police thereupon the appellant along with victim was
apprehended and brought to Tarari Police Station.
10. P.W. 7 is the Doctor who has examined the victim girl. She has stated that it
was difficult to say that the rape was committed or not since signs of rape was
disappear with the lapse of time or after menstruation. She has also stated that no
injury was found on the person of the victim girl.
11. From the deposition of the material witness as well as evidence of the victim
girl it is apparent that the appellant took away the victim girl without consent of his
father and committed rape on her. It is well settled that a victim of sexual assault is
not accomplice, she should be treated as an injured and Court can convict the accused
even on sole testimony of the victim girl. Since it is most unlikely that a girl of such
assault specially an unmarried minor girl would invite such disgrace in society and also
3
take risk of her future by marital prospect falsely implicating a person until and unless
she is not subjected to such cruelty.
12. In this case from the record it appears that even there was no enmity between
the appellant and the informant. Admittedly the victim girl was minor at the time of
occurrence. It has been submitted by the learned counsel that the doctor who
examined the victim girl did not found the sign of rape but it is obvious that the victim
girl was examined after three days of her recovery as such the absence of signs of rape
is not expected and does not falsify the case of the prosecution since the girl was
minor and was taken without the permission of her guardian with a motive to marry
her. As such the offence punishable under S. 366-A of the Penal Code, 1860 is also
attracted. The learned Court below has rightly convicted the appellant for the offences
punishable under Ss. 366-A and 376 of the Penal Code, 1860.
13. However, coming to the question of sentence learned counsel appearing on be
half of the appellant has submitted that the appellant has remained in jail for about
3½ years and both the victim girl and appellant have already been married, therefore,
it re quires consideration on the point of sentence.
14. Keeping in view the submissions made on behalf of the appellant in my view, it
would be expedient in the interest of justice that if the sentences of the appellant is
reduced from 9 years to 5 years under Section 376 of the Penal Code, 1860 and also
from 7 years to 5 years under Section 366-A of the Penal Code, 1860. Both the
sentences shall run concurrently.
15. Accordingly, with the aforesaid modification in the sentence this appeal is dis
missed.
16. Order accordingly.
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.
4
Crl. A. 1340/2010
Atender Yadav v. State (Govt. of NCT of Delhi)
2013 SCC OnLine Del 4322
(BEFORE KAILASH GAMBHIR AND INDERMEET KAUR, JJ.)
Atender Yadav .…. Appellant

Mr. K. Singhal, Advocate Appellant produced from custody
v.
State Govt of NCT of Delhi .…. Respondent
Ms. Richa Kapoor, Additional Public Prosecutor for the State
Crl. A. 1340/2010
Decided on October 29, 2013
JUDGMENT
KAILASH GAMBHIR, J.
1. By this appeal filed under Section 374 of the Code of Criminal Procedure 1973
(hereinafter referred to as Cr.P.C) the appellant seeks to challenge the judgment and
order dated 20.09.2010 and 23.09.2010 respectively passed by the Court of Ld.
Additional Sessions Judge, West Distt., Delhi, thereby convicting the appellant for
committing an offence under Section 376(2)(f) of India Penal Code, 1860 (hereinafter
referred to as IPC) and sentenced him to undergo imprisonment for life together with
fine of Rs. 2,000/- and in default thereof to undergo further simple imprisonment for a
period of three months.
2. The case of the prosecution in the brief is that:
“On 30.05.2007, on receipt of DD No. 24, ASI Harpal Singh reached PS Pashchim
Vihar, where HC Ranjeet Singh Ct. Satish Kumar PP Madipur met him. ASI Joginder
Singh produced Prosecutrix aged 11 years, the daughter of the accused. ASI Harpal
Singh made inquiries from Prosecutrix who stated that the accused had raped her in
November and December 2006. Prosecutrix along with her mother Geeta Anand were
taken to Sanjay Gandhi Memorial Hospital (hereinafter ‘SGM Hospital’) where she was
medically examined. The IO recorded the statement of Prosecutrix. The case was
registered and after due investigation challan was filed under sections 376(2)(f)/506
IPC against the accused.”
3. After supplying the copies of the charge sheet to the accused as per law, case was
committed to the Court of Sessions. Arguments on the point of charge were heard and
charges under sections 376(2)(f)/506 IPC were framed against the accused, to which
he pleaded not guilty and claimed trial. Prosecution tendered 17 witnesses in support
of their case. The statement of the accused under section 313 Cr.P.C was recorded
wherein he denied the incriminating evidences produced by the prosecution against
him. In his defense accused had examined 18 witnesses.
4. Addressing arguments on behalf of the appellant, Mr. K. Singhal, Advocate

contended that mother of the accused, PW-1 and father of the accused PW-2 had did
not support the case of the prosecution. He further contended that the accused and
5
PW2 did not have cordial relationship due to which PW2 even disowned accused by
publishing a notice in the newspaper in the year 1999. Counsel also pointed out that PW-
2 in his cross-examination categorically stated that he had handed over the children to
their mother on the very next day of taking the prosecutrix on superdari.
5. Dealing with various statements made by the prosecutrix who had entered into
witness box as PW-3, counsel for the appellant pointed out that her version that her
father used to commit rape upon her regularly, is contrary to in the MLC report of the
of the Prosecutrix (Ex.PW5/A), wherein the gyne doctor who examined the prosecutrix
had opined that introituses admits two fingers with difficulty.
6. Counsel further pointed out that, in the MLC report, the doctor has not given any
opinion as to whether the hymen was torn afresh or the same was an old one. The
counsel further contended that in the said MLC it is not clear as to whether the rape
was committed on the prosecutrix in the recent past or not and such a doubt goes in
favour of the accused. Counsel also argued that as per the MLC report there were no
injuries on the private part of the prosecutrix and the absence of such injuries would
again prove the innocence of the appellant as had the prosecutrix been raped by the
appellant during the period of November-December, 2006, certainly the prosecutrix
must have suffered some injuries on her private parts.
7. Placing reliance on Modi's Medical Jurisprudence, counsel for the appellant had
drawn the attention of this Court to pages 503 and 504 of the same wherein it has
been observed as under:-
Page 503:
“In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually
ruptured, having one or move radiate tears.”- Having in the present case, the girl who
is only 11 years-hymen is only torn and the same is not lacerated and not having more
radiate tears.
“Frequent sexual intercourse and parturition completely destroy the hymen, which is
represented by several small tags of tissue, which are called carunculae hymenealis or
myrtiformes.”
Page 504:
“In small children, the hymen is not usually ruptured, but may become red and
congested with the inflammation and bruishing of the labia. If considerable force is
used, there is often laceration of fourchette and perinaeum.” - In the present case, no
injury either healed or having any old scar marks etc. was present either on fourchette
or on perinaeum.”
8. Counsel for the appellant also placed reliance on a piece of an article referred to as
“The Journal of the Forum for Medical Ethics Society since 1993” wherein the
author of the article had dealt with the subject “Moving from evidence to care;
ethical responsibility of health professionals in responding to sexual assault”.
In the said article, the author has contended as under:-
“In the standard medico-legal examination, the size of the vaginal opening is
determined through the ‘two finger test’ to ascertain past sexual activity and remarks
are made about whether or not the survivor is ‘habituated’ to sexual intercourse.
Despite court judgments and changed in the Evidence Act stating that past sexual
history has no bearing on the current episode of sexual assault, the past sexual
6
.
conduct of the survivor continues to form an important part of a doctor's conclusion

(8). These are still used during court trials to raise doubts about the survivor's
character and thus question the veracity of her statements.”
9. Counsel also referred to Paras 10 and 11 of Chapter 11 of Justice Verma

Committee's reports wherein it was observed as under:-
“10. It is crucial to underscore that the size of the vaginal introituses has no bearing
on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal
muscles which is commonly referred to as the two-finger test must not be conducted.
On the basis of this test observations/conclusions such as ‘habituated to sexual
intercourse’ should not be made and this is forbidden by law.
11. Routinely, there is a lot of attention given to the status of hymen. The “finger test”
is also conducted to note the dispensability of the hymen. However it is largely
irrelevant because the hymen can be torn due to several reasons. An intact hymen
does not rule out sexual assault, and a torn hymen does not prove previous sexual
intercourse. Hymen should therefore be treated like any other part of the genitals
while documenting examination findings in cases of sexual assault. Only those that are
relevant to the episode of assault (findings such as fresh tears, bleeding, oedema etc.)
are to be documented.”
10. Counsel for the appellant also dealt with many other contradictions and serious
inconsistencies in various statements of the prosecutrix especially like in her court
deposition wherein she deposed that as far as she remembers she had told this fact to
her mother in the month of January, 2007 whereas in her statement made before the
Magistrate under section 164 Cr.P.C she stated that she told this fact to her mother on
29.05.2007; similarly she stated that she did not remember the month when she had
made a complaint to the police whereas in her statement made before the Police under
section 161 Cr.P.C she stated that my mother made a complaint to the Police on 30th
May 2007; further she states that her statement was recorded several times although
prior to court deposition there were only two statements, i.e., one rukka and other
under Section 164 Cr.P.C.; and also that she used to visit her school only 3-4 days in a
month whereas her school documents show to the contrary.
11. Counsel for the appellant had also drawn the attention of this Court to various
circumstances in support of his argument that the accused had the best relationship
with the prosecutrix and there could not have been any chance of a father committing
rape of his own daughter. Counsel also argued that the prosecutrix has falsely
implicated the appellant with such serious allegations of rape at the instance of her
mother (hereinafter referred to as PW-4) who made her a tool in order to not only take
revenge from the appellant but also to take back the custody of both the children
which otherwise she failed to claim from the accused in view of the terms and
conditions agreed between both the accused and PW-4 in mutual divorce petition.
12. Counsel for the appellant also argued that prosecutrix was totally under the
influence of her mother and due to this reason she had acted at the dictate and
tutoring of her mother and has lodged the said false complaint. Citing one such
instance counsel pointed out that the prosecutrix in her court deposition admitted the
fact that on one night her mother asked her as to whether she loves her more or loves
her father more and in reply she told her mother that she loves her more. Counsel also
pointed out that PW4 was accompanying the prosecutrix even at the time of recording
of her statement under Section 164 Cr.P.C. and this again showed that the prosecutrix
was under the influence of PW4 even at the time of recording the statement under
7
Section 164 Cr.P.C. Counsel also pointed out that the prosecutrix was attending her
school regularly and as per daily attendance sheet proved on record as Exs. DW-1/D,
DW-1/A & DW-1/B, the prosecutrix had attended the school with the attendance of 44
out of 48 in the month of November and 38 out of 38 in the month of December. The
contention raised by the counsel for the appellant was that had there been rape of the
prosecutrix in the months of November-December, she could not have been able to
attend her school regularly because such a girl would suffer great physical and mental
trauma. Counsel also pointed out that there was visible improvement in the academic
performance of Prosecutrix, as she had secured 26.7% in the 1st Term Examination
whereas in her 2nd Term Examination, which was held in the month of December, she
had secured 41.5%, which again showed that the prosecutrix was absolutely normal
and under no trauma of any kind. Counsel also pointed out that the appellant was
taking due care of the prosecutrix as his second wife Ms. Poonam used to give tuition
to her and in the process the appellant wanted the prosecutrix to come closer with her
new mother for better understanding and strengthening of their relationship. Counsel
also pointed out that the appellant got the prosecutrix admitted in a day boarding
school and he himself used to drop her at the school and then pick her up and this
again showed dedication and devotion of a father towards his child.
13. With regard to the testimony of PW-4 Geeta Anand, counsel for the appellant
argued that her testimony is full of concoctions, falsehood and contradictions with
material improvements from her previous statements and therefore, the same cannot
inspire confidence to nail the accused. Counsel also argued that in her deposition PW-4
deposed that the accused used to watch blue movies in the house and on one
occasion, when she came back from her paternal house, her daughter told her that the
accused was watching blue movies and one lady came to the house and at that time
some friends of the accused also came in the house and they were doing some
obscene activities. The contention raised by the counsel for the appellant was that with
such kind of character of the accused, the mother could not have given the custody of
the children to a person of such a low character. Counsel also pointed out that such
deposition of PW-4 is false on the face of it as no such allegation has been levelled by
the prosecutrix in her various statements. Counsel further pointed out that from the
deposition of PW-4 it also becomes apparent that she was in regular touch with the
father of the accused. Counsel also pointed out to the deposition of PW-4 wherein she
stated that her father-in-law (PW-2) used to tell her that the accused did not allow
them to meet with the children and this testimony clearly showed that the relationship
between PW-2 and accused was not cordial. Counsel also pointed out that in her
deposition PW-4 deposed that she went to Korea on Scholarship in the month of May,
2006 for higher studies and she came back in September and thereafter had gone to
meet her children in school, where she was shocked to see her daughter being dark,
fatty and grown up during the past period of six months and with such statement PW-
4 tried to give indication that because of rape and consequent starting of menarche
she found her daughter in such a condition. The contention raised by the counsel for
the appellant was that PW-4 was not even sure as to when wrong act has taken place
with her daughter and such deposition of PW-4 also goes contrary to the MLC report of
the prosecutrix wherein the starting time of menarche is given as one year back
meaning thereby sometime in April-May, 2006. Counsel also pointed out to the
testimony of PW-4 where she said that the accused telephoned her and asked her not
to meet the children since he was married and the step mother of the children does
not approve her meeting with the children. Referring to this part of testimony of PW-4,
counsel for the appellant submitted that firstly as per the evidence on record, the
accused had married to Ms. Poonam on 14th February, 2007 and thus claim of the
witnesses that she found the prosecutrix dark, fatty etc. in September, 2006 loses its
8
basis and secondly if the accused was already married, then his wife would have been
living with him in the house and the alleged commission of rape would have taken
place in the presence of the second wife of the accused but that is not a case set up by
the prosecutrix. Counsel also pointed out that PW-4 in her deposition candidly
admitted that she was told by her daughter that second wife of her husband used to
treat her well. Another contradiction pointed out by the counsel for the appellant was
that PW-4 was told by her daughter that she started having menarche only after the
accused had intercourse with her and this is contrary to her own testimony where she
said that when she came back from Korea and met with the children then she
discussed about the condition of prosecutrix with the accused and also asked accused
to take special care of Prosecutrix during her menstruation period. Counsel further
pointed out that this discussion took place in the month of September, 2006, which
shows that PW-4 was already aware about the menstruation of the prosecutrix but yet
she made a false statement before the Court that the menstruation period of the
prosecutrix started after rape.
14. Counsel also argued that PW-4 made material improvements in her court
deposition wherein she deposed that her daughter started revealing the facts slowly
and slowly and told her that her father used to have sexual intercourse with her and
also from her back side and due to that she could not sit in latrine for some days.
Counsel also argued that no such fact was revealed by the prosecutrix in any of her
statements. Further even in the MLC of the prosecutrix no such fact has been stated.
Even PW5 being brother of the prosecutrix did not state any such fact in his court
deposition.
15. Counsel also argued that PW-4 in her deposition stated that she started giving
slaps to prosecutrix after she admitted the fact that she had been raped by her father
but in the MLC no abrasions were found on the cheeks of the prosecutrix. Counsel also
pointed out that in her cross-examination PW-4 failed to disclose the date when the
prosecutrix had informed her about the incident and this fact again put the witness in
dark as she did not even remember such a crucial date, when her daughter disclosed
her about the various acts of rape committed upon her by her father. Counsel also
pointed out that PW4 clearly admitted that she had lodged a complaint against the
accused and her in-laws under Section 498A IPC, as they used to demand the children
from her. The contention raised by the counsel for the appellant was that PW-4 wanted
to take revenge from the accused as her sole objective was to take back the lawful
custody of the children from the accused. To crack the credibility of the witness,
counsel also submitted that she had concealed material facts from the Passport
Authority and on the complaint lodged by the accused her Passport was impounded
and cancelled by the Passport Authority vide order dated 16th November, 2006.
Counsel also pointed out that PW-4 admitted that she had met the children alone once
in the year 2006 when she returned back from Korea and at that time nothing of this
sort was disclosed to her by the prosecutrix.
16. Counsel also argued that PW-4 in her deposition admitted the fact that the
prosecutrix used to drive cycle when she was around 4-5 years and she used to do
swimming also. The contention raised by the counsel for the appellant was that in the
MLC of the prosecutrix the hymen was found torn and PW-8, Dr. Deepti Goel, in her
cross-examination clearly stated that hymen can be torn on account of many reasons
like injuries during cycling or sports and in the background of sports activities, tearing
of the hymen of the prosecutrix could be as a result of the same and not necessarily
on account of alleged rape. Counsel also submitted that PW-4 has twice gone to meet
the accused in jail with a view to blackmail him otherwise in the background of such a
treacherous conduct of the accused, how she could pay visit to the jail to meet him.
9
Page Monday, October 31, 2022
10
Counsel also pointed out that PW-4 in her cross-examination admitted that she also
met the accused in the court and had assured him to give necessary help which again
shows that PW-4 was fully conscious of the falseness of the present case.
17. Dealing with the evidence of PW-5 Yash Yadav who is the brother of the
prosecutrix, counsel for the appellant pointed out that in his deposition PW-5 clearly
admitted that whenever he and his sister had to go out, the accused allowed them and
this fact would clearly show that the prosecutrix was free to roam around without any
restriction from the side of the father. Counsel also pointed out that, during his cross-
examination PW-5 clearly stated that his sister did not tell about the wrong act.
Counsel also pointed out that PW-5 in his testimony also admitted that there were
other children in tuition classes which shows that the prosecutrix had ample
opportunity to interact with other children. Counsel also argued that PW-7 Ms.
Mahinder Pal Kaur, Principal, Shiv Modern School in her cross-examination deposed
that the appellant had moved an application dated 21st April, 2007 with the
instructions that the prosecutrix may not be allowed to meet or go with her mother
and her custody may not be given to the mother or anybody else on her behalf. The
contention raised by the counsel for the appellant was that this act of the accused also
instigated his ex-wife PW4 to falsely implicate him in the present case. Counsel also
referred to the cross-examination of PW-11 ASI Joginder Singh wherein he
categorically admitted the fact that the prosecutrix did not make any statement before
him regarding rape but she stated that a wrongful act has been committed with her by
her father. The contention of the appellant was that at that time PW-4, Geeta did not
make up her mind and due to this reason alone the said police officer was informed
about some wrong act committed by the accused with the prosecutrix. Counsel also
submitted that the appellant himself has been examined as DW-18 and his testimony
is at par with the victim in terms of Section 315 Cr.P.C. but yet the learned Trial Court
failed to give any weightage whatsoever to his testimony.
18. Counsel for the appellant also referred to the evidence adduced by the defence
witnesses, who, as per counsel for the appellant, succeeded in proving the innocence
of the appellant and his false implication by his ex-wife Geeta in collusion with her
parents-in-law.
19. Based on the above submissions, counsel for the appellant with all vehemence
urged that the appellant was falsely implicated in the present case at the instance of
his ex-wife Geeta and his hostile parents and to achieve their sinister designs, they
succeeded in making their own daughter, as a tool to take revenge. Counsel also urged
that the appellant always took due care of his children and this fact could alone be
established by the fact that he was always insisting for the custody of his children
which ultimately was agreed upon by his ex-wife in the joint petition for mutual
divorce. Counsel also urged that the learned Trial court also failed to appreciate that
since the time of the birth of the appellant, his father Om Prakash has not accepted
him as a son and because of this fact the appellant was raised by his grandparents,
uncle (chacha) and aunty (bhua). Counsel also submitted that due to this fact the
grandfather of the appellant had bequeathed the property bearing No. E-650, Madipur,
Delhi in favour of the appellant under a Will. Counsel thus submitted that his father
was quite inimical and jealous of him because of the said property coming in his hand s
which in normal course would have gone to him and due to this reason the father had
joined Geeta in getting the said false case registered against him.
20. In support of his arguments learned counsel for the appellant placed reliance on
the following judgments:-
10
11
1. State v. Rahul, reported in 2013 IV AD (Delhi) 745
2. Pappu v. State of Delhi, reported in 2010 (1) Cri.LJ 580 Delhi
3. Lillu @ Rajesh v. State of Haryana, reported in AIR 2013 SC 1784
4. State of Karnataka v. Shantappa Madivalappa Galapuji, reported in JT 2009 (5) SC

660
5. Virender v. State of NCT of Delhi, reported in 2010 III AD (DELHI) 342
6. Shaikh Sheru v. State of Maharashtra criminal appeal no. 406 of 2012.
21. Repudiating the submissions of the counsel for the appellant, Ms. Richa Kapoor,
APP for the state, strenuously contended that the learned Trial Court has passed well
reasoned judgment on conviction and sentenced the appellant for life imprisonment
after having carefully evaluating the entire material on record. Learned APP further
argued that the appellant has committed most sinful act of raping his own daughter of
11 years of age and he cannot hide his sin under the facade of alleged minor
discrepancies and contradictions in the testimonies of material witnesses. Learned APP
also argued that the counsel for the appellant has made a futile attempt to find fault in
the testimonies of PW-3, PW-4 and PW-5 but the truth remains that their testimonies
remained unrebutted and uncontroverted on material facts leaving no room to
disbelieve them. Learned APP also argued that the medical evidence proved on record
through the MLC of the appellant and the MLC of the prosecutrix further corroborates
and strengthens the oral testimonies of the prosecutrix and other material witnesses.
Learned APP also argued that as per the settled legal position even an uncorroborated
testimony of prosecutrix is sufficient to inculpate the offender of the crime but in the
present case the testimony of the prosecutrix has been duly corroborated by her
mother PW-4 and her brother PW5. Learned APP also argued that such a small child
would not falsely implicate her father and that too in a crime of such a nature as
serious as rape. Counsel also argued that the testimony of the prosecutrix was
supported by her younger brother PW-5 who in his deposition stated that he was told
by his sister that the appellant used to commit wrong acts with her. He also deposed
that the appellant used to take his sister downstairs during the night after bolting the
room from outside. Learned APP also argued that the parents of the accused although
has turned hostile but they remained consistent in their stand that on 29th May, 2007
mother of the children Geeta PW-4 was present at their house and also that the
prosecutrix was also present in that house on the same day. Learned APP also pointed
out that the case was reported to the police vide DD No. 8A proved on record as Ex.PW
-9/A from the telephone Nos. 65108074 and 9313653793 and father of the accused
was the subscriber of the said phone nos. Learned APP further argued that the learned
Trial Court has rightly ignored a portion of the testimony of PW-3 where she had
deposed having told her mother about rape in January, 2007, as a mere slip of tongue.
The contention raised by the learned APP for the State was that the statement of the
prosecutrix is to be read as a whole and not piecemeal. In her same sta tement, the
prosecutrix deposed that she did not remember the month of her making complaint to
the police and yet further in her same deposition she stated that “I have stated to the
police that I did not remember the exact date but the incident took place about six
months back.” Learned APP thus submitted that the said six months period if
calculated in reverse from the date of complaint lodged on 30th May, 2007 it will be
November-December, 2006 and this is the period which the prosecutrix had stated in
her complaint as well as in her statement under Section 164 Cr.P.C. and in her court
deposition. Learned APP thus submitted that the testimonies of the prosecutrix as a
11
12
whole are totally believable, truthful, clear, cogent and convincing. Learned APP also
submitted that the prosecutrix could not inform her mother PW-4 about the said
shameful acts of her father as he did not allow PW-4 to meet the children. Learned APP
also submitted that prior to the meeting of 29th May, 2007 PW-4 lastly met the
prosecutrix in the month of September, 2006.
22. Learned APP also submitted that the appellant was a sex maniac and without
bothering the presence of his small children especially female, he used to watch blue
movies at the residence in the company of his friends. Learned APP also submitted
that no convincing reasons have been given by the appellant as to why his daughter
should falsely implicate her own father and why in that process she did not even
hesitate going to the extent of putting her own honour and prestige at stake besides
jeopardizing her marriage prospectus? Learned APP also argued that no girl would like
to undergo trauma of subjecting herself to ordeal of visiting the police station and then
of court proceedings without the girl having actually suffered trauma of being raped by
her own father.
23. Learned APP also argued that the testimony of the accused who entered into
witness box as DW-18 is totally unreliable and he failed to advance any convincing
reason for his implication by his own daughter and his parents that too in a crime of
such a serious nature. Learned APP thus submitted that the case in hand is an open
and shut case and the learned Trial Court dealt with each and every aspect of the
defence raised by the appellant meticulously and based on sound reason.
24. In support of her arguments learned APP for the State placed reliance on the
following judgments:-
i. Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684
ii. Gurudev v. The State (NCT of Delhi)
iii. State of Madhya Pradesh v. Santosh Kumar
iv. State v. Jain Hind 2012 (4) JCC 2490 v. Pushpanjali Sahu v. State of Orissa AIR
2013 SC 1119
vi. State of Karnataka v. Shantappa Madivalappa Galapuji, JT 2009 (5) SC 660
vii. Virender v. State of NCT of Delhi, 2010 III AD (DELHI) 342
viii. Criminal Appeal No. 406/2012 titled as Shaikh Sheru v. The State of Maharashtra,
decided on 2nd April 2013
ix. Pappu v. State of Delhi, reported in 2010 (1) Cri.LJ 580 Delhi
x. Lillu @ Rajesh v. State of Haryana, reported in AIR 2013 SC 1784
xi. State v. Rahul, 2013 IV AD (Delhi) 745.
25. We have heard counsel for the parties at great length and gave our conscious
consideration to the arguments advanced by them. We have also carefully gone
through the Trial Court record.
26. The case in hand has its own peculiarity of facts wherein on the one hand, the
serious allegations of rape were levelled by a minor daughter of 11 years of age,
against her father supported by deposition of her mother, her three years younger
12
13
brother and initially even the grandparents of the girl, and on the other hand, as per
the accused father, the entire case is an outcome of well planned conspiracy between
his ex-wife supported by his hostile parents, who had used her daughter as a tool for
settling their scores and for taking back the custody of the children, which was
granted in favour of appellant under the mutual settlement arrived at between the
parties.
27. Whether the appellant is innocent and has been falsely implicated with such a
serious charge of rape by his own daughter at the behest of her mother for wreaking
vengeance on the accused, with a view to spite him due to private and personal
grudge or the father is such debouch and an evil person, who would not even spare
even his minor daughter in satisfying his lust for sex. Truth being the cherished ideal
and ethos of India, pursuit of truth is the guiding star of the criminal justice system.
For justice to be done truth must prevail. It is truth that must protect the innocent
and it is truth that must be the basis to punish the guilty. Thus the search of truth is
the most pious but arduous task entrusted to the courts and this search of truth
primarily rests on the evidence adduced by the parties and the other material proved
on record during the trial of a case and its dispassionate judicial scrutiny and objective
approach of the court. A criminal trial is meant for doing justice to all, the victim, the
accused and also the society. The court does not only discharge the function to ensure
that no innocent man is punished, but also to ensure that a guilty man does not
escape. Both are public duties of the judge. During the course of the trial, the learned
Presiding Judge is expected to work objectively and in a correct perspective. Where
the prosecution attempts to misdirect the trial on the basis of a perfunctory, motivated
or designedly defective investigation, there the Court is to be deeply cautious and
ensure that despite such an attempt, the determinative process is not sub-served. In
arriving at the conclusion about the guilt of the accused charged with commission of a
crime, the court has to judge the evidence by the yardstick of probability, its intrinsic
worth and the animus, if any of witnesses.
28. The prosecutrix here is none else but her own daughter of the appellant. The
appellant got married to PW-4 Ms. Geeta on 29th July, 1995 at Delhi according to
Hindu rites and ceremonies. This marriage was as a result of love affair between them.
As per deposition of the appellant, he got married to PW4 against the wishes of his
parents and, therefore, the marriage was not accepted by his parents and immediately
after the marriage for few days they had to live at his aunty's place and thereafter on
rent in Madipur, Delhi. Out of wedlock of the appellant and PW4, two children were
born. The elder one who is the prosecutrix was born on 23rd July, 1996 while the male
child was born on 17th September, 1999. The husband and wife could not pull off
together and often they used to fight. Marital discord between them resulted into filing
of cris-cross cases by both of them. PW4 filed a complaint with the Crime against
Women Cells under Section 498A/506 IPC in which she had also roped the parents of
the appellant. The appellant, on the other hand, filed a divorce petition on the ground
of cruelty against the respondent. Ms. Geeta also filed a complaint under Section 125
Cr.P.C. against the appellant to seek grant of maintenance. The appella nt also filed a
petition under Section 12 of the Guardianship Act to claim the custody of the children
from his wife. In the criminal case filed by his wife, the appellant got an anticipatory
bail for himself and for his parents. The following details of the cases filed by both the
parties against each other are as under:-
“Cases filed by appellant against Geeta Anand (PW4):
1. Divorce Petition seeking divorce on the ground of cruelty which later on converted
into Mutual consent.
13
2. Kidnapping case by filling a complaint under Section 190 Cr.P.C. before the
concerned MM against Geeta Anand and her father, brother and sister.
3. Petition under Guardianship & Wards Act in the Court of Ms. Anju Bajaj Chandana.
4. Complaint under Section 138 of the NI Act against the sister of Geeta Anand.
5. Complaint with the Passport Authorities for the material concealment of facts by
Geeta Anand.
Cases filed by Ms. Geeta Anand (PW4) against appellant:
1. Complaint under Section 498-A/506 IPC before the CAW Cell which is later on
converted into FIR No. 279/05, dated 19.07.2005.
2. Present FIR.”
29. It will also be necessary here to give a gist of the places where the parties and the
children had resided till they finally parted with them in the company of each other.
“The appellant married PW-4 on 29.07.1995. On 23.07.1996, Prosecutrix (PW-3) was

born and on 17.09.1999 Yash (PW5) was born. In may-june 2003, PW-4 left the house
along with prosecutrix and PW-5 in July 2003 appellant brought back PW-4 along with
PW-3 and PW-5 to his house. In May 2005, PW4 again left the home along with
prosecutrix and PW5. On 26.12.2005 PW-4 handed over both the children to the
accused in the house of accused's father. In April 2006, PW-4 left for South Korea for
learning Korean language. In September 2006, PW-4 came back from South Korea. On
3rd February 2007 accused and PW-4 got divorced by mutual consent and custody of
both the children remain with the accused and PW-4 had visitation rights as per her
convenience.”
30. While analysing and evaluating the facts of the present case, we have to keep in
our mind the aforesaid background of litigation and embittered relationship between
the parties. We may also mention here that the marriage between the parties was
dissolved by a consent decree under Section 13(B)(1) & (2) of the Hindu Marriage Act
vide judgment and decree dated 3rd February, 2007. It will also be useful to mention
here that the present appellant had immediately married to Ms. Poonam on
14.02.2007 with whom he had an affair even before his first marriage was dissolved.
31. As per the case set up by the prosecution, on 29.05.2007 the prosecutrix and her
brother were staying with their grandparents at Shiva Enclave, Paschim Vihar where
their mother also came to meet them. In her statement under Section 161 Cr.P.C., Ms.
Geeta stated that in the presence of her parents-in-law the prosecutrix told her that in
November-December, 2006 the appellant had maintained physical relationship with
her despite her refusal and he also told the prosecutrix that if she dared to disclose
anything, he will physically eliminate her. After learning this, the mother of the
prosecutrix immediately reported to the police and ASI Joginder Singh from PS
Paschim Vihar rushed to the said residence of the grandparents of the prosecutrix. The
police official from PS Madipur also reached there. The prosecutrix along with her
mother was taken to Sanjay Gandhi Memorial Hospital, Delhi where the prosecutrix
was medically examined. The IO recorded the statement of the prosecutrix and
thereafter FIR No. 389/2007 was registered against the appellant under Section 376
(2)(f)/506 IPC. In the MLC of the prosecutrix which was proved on record as Ex. PW-
5/A Dr. Deepti Goel (PW8), it was opined that on medical examination of prosecutrix,
14
her hymen was found to be torn. It was further testified that on vaginal examination
introituses allowed two fingers with difficulty. The appellant was also examined by the
doctor of the same hospital and as per his MLC report proved on record as Ex.PW-5/B,
the opinion given was that there was nothing to suggest that the accused was not
capable of doing sexual intercourse. Believing the testimony of the prosecutrix duly
corroborated by the evidence of her mother PW-4 and her brother PW-5 and to a
limited extent by the evidence of PW-1 & PW-2 supported by the medical evidence and
the FSL report, the learned Trial Court reached at the conclusion that the appellant did
commit rape of his own daughter during the said period of November-December,
2006. Various discrepancies, embellishments and contradictions as crept in the
prosecution case were held to be minor discrepancies and embellishments not
corroding the credibility of testimonies of PW-3, PW-4 and PW-5 and the medical
evidence. Learned Trial Court also did not believe the hostility on the part of the
parents of the appellant and the revengeful attitude of the wife in settling her scores
with the appellant as her entire family was dragged into litigation by the accused and
also to claim back the custody of the children. The learned Trial Court also gave no
weightage to the fact that the prosecutrix neither suffered any injuries on her private
part after alleged repeated sexual acts performed by the appellant nor she had
suffered any kind of depression or trauma which could result in absenteeism from the
school or affecting her academic performance in exams.
32. The legal position relating to evidence of child witness has been dealt with by the
Apex Court in a catena of judgments while interpreting section 118 of the Indian
Evidence Act. All persons are competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender age, extreme old age, disease, whether of body
or mind, or any other cause of the same nature. No particular age has been specified
in Section 118 of the Indian Evidence Act as to at what age a person would be
considered of a tender year, as a whole test is whether the witness has sufficient
intelligence to depose and in a position to give rational answers to the questions
asked.
33. In Suryanarayan Raina v. State of Karnataka reported in (2001) 9 SCC 129, the
Apex Court took a view that evidence of a child witness is not to be rejected per se,
but the court as a rule of prudence resolved to consider such evidence with close
scrutiny and only on being convinced about the quality thereof and its reliability may
record conviction based thereon.
34. In Dattu Rama Rao Shakare v. State of Maharashtra reported in (1997) 5 SCC 341,
it was held as under:
“The evidence of the child witness cannot be rejected per se, but the court, as a rule of
prudence, is required to consider such evidence with close scrutiny and only on being
convinced about the quality of the statements and its reliability, base conviction by
accepting the statement of the child witness.”
35. In State of Karnataka v. Shantappa Madivalappa Galapuji, reported in JT 2009 (5)

SC 660, it was held as under:-
“This precaution is necessary because child witnesses are amenable to tutoring and
often live in a world of make-believe. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable to be influenced
easily, shaken and moulded, but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that there is an impress of
15
truth in it, there is no obstacle in the way of accepting the evidence of a child
witness.”
36. In Acharaparambath Pradeepan v. State of Kerala reported in (2006) 13 SCC 643,

it was held as under:
“Pivotal submission of the appellant is regarding acceptability of PW-11's evidence.

Age of the witness during examination was taken to be about 10 years. Indian
Evidence Act, 1872 (in short the ‘Evidence Act’) does not prescribe any particular age
as a determinative factor to treat a witness to be a competent one. On the contrary,
Section 118 of the Evidence Act envisages that all persons shall be competent to
testify, unless the Court considers that they are prevented from understanding the
questions put to them or from giving rational answers to these questions, because of
tender years, extreme old age, disease-whether of mind, or any other cause of the
same kind. A child of tender age can be allowed to testify if he has intellectual
capacity to understand questions and give rational answers thereto. This position was
concisely stated by Brewer J in Wheeler v. United States. The evidence of a child
witness is not required to be rejected per se; but the Court as a rule of prudence
considers such evidence with close scrutiny and only on being convinced about the
quality thereof and reliability can record conviction, based thereon.
Indisputably, certain factors are required to be considered as regards reliability of the

testimony of the child witnesses but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting the evidence of child
witnesses.”
37. The prosecutrix in the present case was of 11 years of age when she was allegedly
raped by her father. She was a student of V standard during that period. She was of
13 years of age when her statement in court was recorded and by that time she got
upgraded in 6th standard. If we just look at various statements given by the
prosecutrix she has been consistent in saying that she was raped by her father during
the period November-December 2006. Her statement also gets support from the
corroborative deposition of her mother (PW-4) and her brother (PW-5) to a large
extent, but if we look at the surrounding circumstances in which this case was
registered, one gets suspicious and doubtful over the truthfulness and veracity of
various statements made by the prosecutrix i.e. the statement(rukka) before the
police on the basis of which the FIR was registered, her statement under Section 164
of Cr.P.C. before the Magistrate and the statement made by her in the court. We
cannot shut our eyes from the fact that the prosecutrix is a child and more often the
children can be easily swayed away and are prone to tutoring, therefore the statement
of the child witness should always be scrutinized with great care and caution, more
particularly in a case where there is a serious hostility between the husband and wife
and there are fair chances for the child to act at the behest of one such party in
his/her pursuit of settling scores against the other party. In such cases, not only the
court has to search for reliable corroborative evidence either oral or documentary, as a
matter of prudence, but must also feel satisfied that such a child is not playing in the
hands and dictation of any family member or other person who may be in a better
position to have a command and dominance over the child and who has some sinister
agenda of settling scores with the other party named as accused in the commission of
any crime. This precaution is necessary because child witness is amenable to tutoring
and often lives in the world of make-believe. The cases of false implication in rape
cases are not uncommon and in some cases parents do persuade gullible or obedient
daughter to make false charge of rape either to take revenge or for wreaking
16
vengeance on the accused. We are not here suggesting that in every case the
testimony of child witness should be looked upon with suspicion, but before the same
is believed as a reliable and truthful statement, due care and caution should be taken
looking into all the facts and circumstances of the case especially where the accused
happens to be a member of the family and there is another member in a commanding
and dominating position to influence and tutor the child in getting the case registered
against the other for settling his own scores and vendetta.
38. There is a tremendous increase of rape cases of the children and in many cases
astonishingly, the rapist even involved are those who are otherwise revered persons in
the society and worst of all a father himself who is instrumental in giving b irth to the
same very child and then later treat her as an object of his sexual lust and
satisfaction.
39. There cannot be more serious crime than a rape of a minor child and such an
offence assumes a degree of severity when committed by none else but by the father
of the prosecutrix. The father is supposed to protect the dignity and honour of his
daughter. This is a fundamental facet of human life. If the protector becomes the
violator, the offence assumes a greater degree of vulnerability. The sanctity of father
and daughter relationship gets polluted. It becomes unpardonable act. This is a
grievous sin which could be committed by any such parent, who in the lust of
satisfying momentarily sexual desire, shamelessly pollutes his pious and
sanctimonious relationship with his own daughter.
40. To this position as stated above, there can hardly be any other opinion but the
converse position is also equally sinful and unpardonable where a father or any
member of family is falsely implicated with such a serious allegation of rape when
nothing of the same has happened and the prosecutrix becomes a tool in the hands of
her own mother and other family members inimical to the accused. Moral values in the
society have abysmally gone down where even the most unacceptable thing can also
happen.
41. Adverting back to the facts of the present case, what we find is that not only the
prosecutrix was under the total influence of her mother but there are various material
contradictions, discrepancies and improvements in the testimonies of the prosecution
witnesses and also the testimonies of various defence witnesses having gone
unrebutted and the medical evidence not fully supporting the case of the prosecution
and therefore, we find ourselves not in agreement with the reasoning given by the
learned trial court to hold the appellant guilty of committing such a heinous offence of
raping his own daughter.
42. First and foremost circumstances which goes in favour of the appellant is that his
parents who entered into the witness box as PW-1 and PW-2 turned hostile and did
not support the case of the prosecution. Undeniably, these two witnesses had
admitted that prosecutrix was present at their house on the night of 29th May 2007
and also that the mother of the prosecutrix also reached there but at the same time,
we cannot lose our sight from the hostile relationship between the appellant and his
father. The property bearing No. E-650, Madipur, Delhi was a subject matter of dispute
between the appellant and his father PW-1. The appellant had produced a Will which
was left by his grandfather bequeathing the said property in his favour thereby
divesting the right of PW-1 to have a claim over the said property being one of the
legal heirs amongst his brothers. The said Will was proved on record as Ex.DW-13/A.
43. The prosecutrix in her examination-in-chief also deposed that main cause of
17
dispute between her parents were his grandfather and grandmother and due to this
reason her parents had shifted to Madipur, Delhi from Paschim Vihar. It was also
proved on record that the marriage of the appellant with Geeta was against the wishes
of his parents and due to this reason after the marriage they were not allowed to stay
with them and forced to stay with the aunt of the appellant and thereafter in a rented
accommodation. Appellant in his un-rebutted deposition in examination-in-chief also
stated that right from the date of his birth, for certain unknown reasons, his father Om
Prakash Yadav had refused to accept and acknowledge him as his son. He also
deposed that due to this reason there were quarrels between his grandfather and
father and because of such quarrels, his father had left his house and did not return
for a year. He also deposed that he was brought up by his dadaji, dadiji, chachaji,
chachiji and bua. He further deposed that his father's behaviour was bad towards him
and his grandfather arranged for a separate house for his stay i.e. Property No. E-650,
Madipur, Delhi. This is the same property which was later on willed by his grandfather
in his favour. It is because of this hostility in the relationship between the father and
son, the father of the appellant had connived with the ex wife of the appellant - Geeta
in falsely implicating him in the said rape case. The hostility of the relationship
between PW-2 and accused was also highlighted by PW-1, Smt. Leela Yadav mother of
the appellant who in her cross-examination stated that the appellant and his father did
not have cordial relationship and he even disowned the accused by publishing a notice
in the newspaper in the year 1999.
44. Also DW-13, Vijay Singh Yadav, who is real uncle of the appellant and real brother
of PW-2 in his unrebutted testimony before the court, deposed that he asked PW2 as
to why he was letting this happen to his own son and to this, PW2 replied that until he
get the possession of Plot No. E-650, Madipur Colony, New Delhi from the accused, he
would neither take rest nor he would help him in any manner.
45. Smt. Sharda Yadav (DW-15), who is aunt of the appellant, has also deposed in her
unrebutted examination-in-chief to the same effect that her brother, PW2 has
demanded the possession of House No. E-650, Madipur, New Delhi from appellant and
also told that it is after taking the possession of the said house, he would pressurize
Geeta to withdraw the said false case against the appellant. On the other hand, Ms.
Geeta (PW-4) in her cross-examination admitted the fact that she was on visiting
terms at the house of PW2 despite the fact that she had lodged a complaint against
them under Section 406/498A of IPC.
46. The aforesaid hostility on the part of PW-1 and PW-2 and their continuous
relationships with PW4 have not been carefully noticed by the learned trial court and it
is due to this hostility, the parents of the appellant had colluded with Ms. Geeta in
falsely implicating the appellant in a rape case. It appears that wiser sense devolved
upon them when they appeared in court and did not support the prosecution case.
47. Let us now deal with the evidence of Ms. Geeta (PW-4), who as per the appellant is
a master mind behind his false implication. The evidence of PW-4 and her alleged
involvement in getting present case registered through her own daughter of 11 years
of age cannot be properly appreciated without evaluating the other attending
circumstances surrounding her. Indisputably, there is a marital discord between the
appellant and PW4 and matrimonial relationship between them got strained sometime
in the year 2003. PW4 was quite concerned with her career as despite being mother of
two small children, in the year 2006, she went to Korea on scholarship for higher
Studies. As per the deposition of appellant DW-18, she had also undertaken classes in
Korean language and the appellant had not raised any objection to her pursuing the
advancement of her career. In the year 2005, because of the strained relationship,
18
PW4 had taken away both the children to Bangalore with her, but there also they had
to stay with their aunt (Mausi). From Bangalore, the children were brought back to
Delhi at the residence of PW-2 and from the house of PW-2, the children were taken
away by the accused alongwith him. In April 2006, Ms. Geeta left for Korea with her
teacher Mr. Verma. By that time the appellant had already filed a guardianship case
and PW4 had also filed an application under Section 125 of Cr.P.C. and a complaint
with Crime against Women Cell under Section 498A/506 of IPC. The appellant had also
filed a complaint case under Section 190 of Cr.P.C against Geeta, Geeta's father, her
brother and her sister seeking their prosecution under Section 363 IPC. The appellant
had also filed another case under Section 138 of Negotiable Instruments Act, 1881
against Ms. Madhvi Sabharwal, sister of Ms. Geeta. The appellant had also separately
filed a divorce case to seek dissolution of his marriage on the ground of cruelty. Ms.
Geeta, perhaps could not sustain the pressure of the litigation launched by the
appellant and ultimately in the month of December 2006 she had agreed for a mutual
divorce and also for legally handing over the custody of children in favour of the
appellant. PW4 had also agreed to accept the paltry amount of Rs. 1 Lac in full and
final settlement of all material claims from the appellant and for withdrawal of all the
cases filed by both the parties. It was also agreed between the parties that the
appellant would not insist on demanding a sum of Rs. 1 Lac from the sister of Ms.
Geeta, which was a subject matter of complaint filed by the appellant under Section
138 of Negotiable Instruments Act, 1881. Both the parties had accordingly filed a joint
petition under Section 13B(1) and (2) of the Hindu Marriage Act, 1956 and their
marriage was finally dissolved by judgment and decree of divorce dated 3 rd February
2007. Both the said children were already under the custody of the appellant for the
past one year and their custody got legitimacy by the said judgment and decree dated
3.2.2007. Thereafter the appellant, who was already having an affair with another lady
named Ms. Poonam, got immediately re-married on 14th February 2007 i.e. after a gap
of 11 days. After 4-5 days of his marriage PW-4 came to see her children at his
residence and found that the appellant got re-married and perhaps this remarriage of
the appellant within such a short span worked like adding a fuel to the fire in
bolstering the feeling of revenge in Ms. Geeta and such an opportunity Ms. Geeta got
when the children had come to their grand-parents for their stay on 29th May 2007.
48. The falseness on the part of Ms. Geeta gets fully exposed from the following:
a) PW-4 in her examination-in-chief stated that on the evening of 29 th May 2007, she
was told by her daughter that she was now having periods and at such revelation she
became perplexed as by that time her daughter was only 9 years old. On her asking,
the daughter told her that after the accused had sexual intercourse with her, she had
periods after some days. In her cross-examination she completely contradicted herself
by stating that when she came back from Korea to admit the children, she had
discussed about the condition of prosecutrix with the appellant and even asked the
appellant to take special care of prosecutrix during her menstruation period and at
that appellant told that he has already consulted with some lady and he is already
taking care of prosecutrix. She also stated that this discussion had taken place in the
month of September 2006. Thus, her claim that she came to know from the
prosecutrix that she started menstruating only after the sexual act committed by
accused in November - December 2006 is palpably false. It is also pertinent to state
here that as per the MLC report dated 30.05.2007 the prosecutrix was menstruating
since one year, meaning thereby, that her menstruation cycle would have begun
somewhere around April-May 2006.
b) Another false statement given by PW-4 was when she stated that she went to Korea
for scholarship in March 2006 for higher studies and when she came back in
19
September she went to meet her children in school. She was shocked to see her
daughter as she appeared dark, fat and grown up during that period of six months.
The accused had asked her not to meet the children. Accused further told her that he
has now re-married and the step mother of the children does not approve of her
meeting with the children. At this PW4 even went to accused and asked him to atleast
allow her to talk to her children on phone but the accused did not allowed this. That
falseness of PW-4 is apparent from the fact that in September 2006, the appellant was
not married with Ms. Poonam and therefore there was no question of appellant telling
his wife that he has now married. Secondly, the marriage between the appellant and
Geeta was also not dissolved by that time and therefore there was no question of
appellant getting re-married with Ms. Poonam. Thirdly, the falseness in the said
deposition of PW-4 gets exposed from the deposition of prosecutrix (PW-3) who in her
cross-examination stated that her mother visited her in Madipur in the presence of her
father, a number of times and once she came to meet her in the school. She also
stated that she cannot tell the date, month and the year when her mother came to
meet her in the school, but at that time she was in V standard. It is an admitted case
of the prosecution that the children were with the appellant during the time when Ms.
Geeta was away to Korea and they continued to stay with appellant even after the
appellant had returned back from Korea. During that period, the prosecutrix was in V
standard as per her school records placed on record and therefore PW-4 must have
visited the prosecutrix only after she had returned back from Korea in September 2006
when the prosecutrix was in V standard.
c) Ms. Geeta, PW-4 in her examination-in-chief had stated that her daughter started
revealing the fact slowly and slowly that her father used to have sexual intercourse
and also from her backside and due to that she could not sit in latrine for some days
as she was feeling severe pain and she told this fact to her brother and asked what
she should do? All these facts were stated by PW-4 neither in her statement recorded
under Section 161 Cr.P.C. nor this was stated by the prosecutrix in her first statement
to the police on the basis of which FIR was registered or in her statement recorded
under Section 164 of Cr.P.C. before the Magistrate or even in her court deposition. This
is also not supported by the MLC of the prosecutrix. The prosecutrix also nowhere
stated that she had told any such fact to her brother in any of her statements.
d) In her examination-in-chief PW-4 deposed that accused used to watch blue movies
in the house and when she came back to her house after visiting her father she was
told by her daughter that accused used to watch blue movies, one lady came in the
house and they were doing obscene activities and when confronted with this
statement, the accused started fighting her. In her cross-examination when PW4 was
asked whether you stated any such allegation in your statement recorded under
Section 161 Cr.P.C. to police?, she stated ‘yes’. However, when PW4 was confronted
with the statement made to the police under Section 161 Cr.P.C., nothing of this
sought was stated by her to the police.
e) PW4 in her deposition stated that on being told by her daughter that the accused
had sexual intercourse with her and she had periods thereafter and when asked again
to reveal more the daughter started crying. PW4 further deposed that she got
aggressive to know this fact and she started giving slaps to her daughter and raised
an alarm. This deposition of PW4, does not find any support from the prosecutrix or
her parents-in-law, PW1 and PW2 or her son PW5, respectively.
49. From the aforesaid material contradictions and inconsistencies and improvements
made by PW4, we are not able to persuade ourselves to believe that her testimony
inspires any confidence especially in the background of the facts, which have already
20
been discussed herein above.
50. Let us now deal with the most pivotal evidence of the prosecutrix herself. The
prosecutrix in her Court deposition stated that she was raped at night by her father
first time when her grandparents came to the residence of the appellant. In her first
statement (rukka) PW3 nowhere stated that she was for the first time raped by her
father when her grandfather had visited him and so far as her statement under Section
164 Cr.P.C. is concerned her version is different as there she stated that when her
grandfather had visited the residence of appellant son somewhere in the month of
November, but not knowing the exact date, at that time she was sleeping and her
father had teased her and after her grandfather had left thereafter against her wishes
her father had established physical relationship with her for 10-15 times. It would be
thus seen that in all the three statements of prosecutrix, she had given different
versions. In her first statement (rukka) she nowhere disclosed the visit of her
grandfather and in her statement under Section 164 Cr.P.C. she deposed for being
teased by her father at the time of visit of her grandfather and in her Court deposition
she took entirely different stand of being raped at night when her grandparents had
visited the residence of the appellant.
51. Another vital contradiction on the part of the prosecutrix is that in her cross-
examination she deposed that she attended the school only 3-4 days in a month and
this false deposition on the part of the prosecutrix gets clearly exposed from the daily
attendance register proved on record as Exs. DW-1/D, DW-1/A & DW-1/B,
respectively, which clearly reveals that prosecutrix had been regularly attending the
school i.e. 44 attendance out of 48 in the month of November and 38 attendance out
of 38 in the month of December.
52. The prosecutrix in none of her statements endorsed the stand of her mother PW4
that her menstruation started after she was raped by her father. The prosecutrix also
did not support the stand of her mother PW4 that her father used to have sex with her
from her back side and due to this she could not sit in the latrine for some days and
that she was feeling severe pain and she told this fact to her brother also to ask what
she should do?.
53. Before we further analyze the entire set of circumstances under which the said
complaint had been lodged by the prosecutrix implicating her own father in such a
serious offence, let us first refer to the MLC of the prosecutrix which was proved on
record as Ex.5/A. As per the MLC report, her mother (PW4) accompanied prosecutrix to
Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi on 30 th May 2007 at 1.10 PM. The
age of the prosecutrix as stated in the MLC as on date of her examination was 11
years. The prosecutrix was also accompanied by HC Ranjit, from Police Station Punjabi
Bagh, New Delhi. In the hospital, the prosecutrix was medically examined by Dr. Vinay
Kumar to whom the prosecutrix and her mother disclosed the alleged history of sexual
assault by her father. The prosecutrix was referred to gyne department and from gyne
department the prosecutrix was medically examined by Dr. Monika. On medical
examination, the hymen of the prosecutrix was found torn and as per vaginal
examination, the doctor opined that ‘introituses, admits two fingers with difficulty”.
The said MLC also records status of menarche as one year back. Exact uterus size
could not be assessed. Doctor had also collected the vaginal swab samples and
undergarments of the prosecutrix, which were sealed and referred for forensic opinion.
The gyne opinion given by Dr. Monika in the said MLC report Ex.5/A was proved in the
testimony of Dr. Deepti Goel (PW-8), Medical Officer, Sanjay Gandhi Memorial
Hospital. PW-8 in her deposition stated that Dr. Monica had left the hospital and her
whereabouts are not known and since she has seen Dr. Monica signing and writing,
21
therefore she was in a position to identify her signatures at the said MLC report and
was competent to depose about the said MLC report. In her cross-examination, she
stated as under:-
“The hymen can be torn on account of many reasons like injury during cycling or
sports and sexual intercourse. It is possible that prosecutrix aged around 10-11 years
might receive injuries in her vagina during the course of intercourse by grown up
man.”
54. In the MLC, there are no external signs of injuries. However, Dr. Deepti Goel (PW8)
in her cross-examination stated that if a minor girl is raped there can be or cannot be
injury marks.
55. It is by far well recognised position that the condition of hymen being torn of the
prosecutrix may not necessarily lead to infer previous sexual intercourse and
conversely being hymen not torn also does not necessarily mean that there was no
sexual intercourse. Dealing with the subject of hymen torn and size of vaginal
introituses, Justice Verma Committee in their report has given the following
observations:-
“10. It is crucial to underscore that the size of the vaginal introituses has no bearing
on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal
muscles which is commonly referred to as the two-finger test must not be conducted.
On the basis of this test observations/conclusions such as ‘habituated to sexual
intercourse’ should not be made and this is forbidden by law.
11. Routinely, there is a lot of attention given to the status of hymen. The “finger test”
is also conducted to note the dispensability of the hymen. However it is largely
irrelevant because the hymen can be torn due to several reasons. An intact hymen
does not rule out sexual assault, and a torn hymen does not prove previous sexual
intercourse. Hymen should therefore be treated like any other part of the genitals
while documenting examination findings in cases of sexual assault. Only those that are
relevant to the episode of assault (findings such as fresh tears, bleeding, oedema etc.)
are to be documented.”
56. Modi's Medical Jurisprudence, 11th Edition, Chapter XVII, page 475 has
dealt with this subject in the following orders:-
Page 503:
“In nubile virgins, the hymen, as a result of complete sexual intercourse, is usually
ruptured, having one or move radiate tears “Frequent sexual intercourse and
parturition completely destroy the hymen, which is represented by several small tags
of tissue, which are called carunculae hymenealis or myrtiformes.”
Page 504:
“In small children, the hymen is not usually ruptured, but may become red and
congested with the inflammation and bruishing of the labia. If considerable force is
used, there is often laceration of fourchette and perinaeum.” - In the present case, no
injury either healed or having any old scar marks etc. was present either on fourchette
or on perinaeum.”
57. In the Journal of the Forum of Medical Ethics Society since 1993 in the editorial
“Moving from evidence the care: ethical responsibility of health in responding
22
to sexual assault”, it has been opined as under:-
“this is a contrary scientific evidence that the presence of an intact hymen does not
rule out sexual assault, and the fact of a torn hymen does not prove previous sexual
intercourse, as the hymen can be torn due to many other activities like cycling, horse-
riding, masturbation etc.”
58. The Division Bench of this court in the case of Pappu v. State of Delhi, reported in
2010 (1) Cri.LJ 580 Delhi was also dealing with similar medical condition of the
prosecutrix of six years of age whose hymen was also found torn and her vagina
admitted two fingers easily and no injury was found on private part, and the Division
bench after placing reliance on the medical jurisprudence (5 th Edition by Dr. R.M. Jhala
and B.B. Raju) held as under:-
“The reason is obvious. medical jurisprudence evidences that in adolescent girls the
hymen is situated relatively more posteriorly and for said reason there is a possibility
of rape being committed without the hymen being torn; the converse whereof would
be that if the hymen of an adolescent girl is torn due to rape, the penetration has to
be a deep penetration. The medical jurisprudence guides that the labia majora are the
first to be encountered by the male organ and they are subjected to blunt forceful
blows, depending on the vigour and the force used by the accused and counteracted
by the victim. The narrowness of the vaginal canal makes it inevitable for the male
organ to inflict blunt, forceful blows on the labia and such blows lead to contusion
because of looseness and vascularity. The feature of such contusion is revealed against
the pink background of the mucous membrane dark red contusion being evident to the
naked eye.”
59. The above judgment of the Division Bench was also dealing with the case of false
implication of the accused by the father of the prosecutrix who believed that the
accused had an illicit relationship with his wife.
60. It would also be useful to refer here the following extracts taken out from the
Medical Jurisprudence & Toxicology (Law practice and procedure) authored by
Dr. K.S. Narayan Reddy where the author has observed as under:-
“As the age and size of the infant increases, the pattern of injury will become less
marked but the circumferential tears of the vestibular m mucosa ucoas are found up to
the age of six years or more. Full penile penetration produces bruising of the vaginal
walls and frequently tears of the anterior and posterior vaginal walls. Anterior tears
can involve the bladder and the posterior tears the anorectal canal. Vaginal vault may
rupture, and there may be vaginal herniation of abdominal viscera. The hymen may be
entirely destroyed or may show lacerations. Blood may be oozing from the injured
parts or clots of blood may be found in the vagina. There may be mucopurulent
discharge from the vagina. In digital penetration of the infant vagina, there is
frequently some scratching or bruising of the labia and vestibule, but the
circumferential tears are absent. The hymen shows a linear tear in the posterior or
posterolateral quadrant, which may extend into the posterior vaginal wall and on to
the skin of the perineum and may involve the perineal body. Ano-rectal canal is rarely
involved. Bruising in the margins of tear and of anterior vaginal wall are common, but
vaginal vault injury is rare. Any attempt to separate the thighs for examination causes
great pain, because of the local inflammation. The child walks with difficulty due to
pain. The absence of marks of violence on the genitals of the child, when an early
examination is made is strong evidence that rape has not been committed.”
23
.
61. The prosecutrix in the facts of the present case, has alleged her being repeatedly
raped by her father during the period of November - December 2006 and complaint to
this effect was lodged with the police on the morning of 30th May 2007 i.e. after a gap
of 6 months. With such a wide gap, there could not have been any fresh evidence of
commission of the rape through medical examination of both the prosecutrix and the
accused as well as through other evidences including undergarments of both of them
and therefore, the only evidence available is the said MLC of the prosecutrix (Ex.5/A)
and MLC of the appellant (Ex.5/B). In the MLC of the prosecutrix, no injuries on the
private part or any kind of inflammation were found. As per the Modi's jurisprudence,
frequent intercourse and parturition completely destroy the hymen, which is
represented by several small tags of tissues, which are called carunculae hymenealis
or myrtiformes. However no such small tags were detected even on a gynaecological
examination of the prosecutrix.
62. We are completely at loss and rather anguish to find that the prosecutrix who has
alleged repeated sexual intercourse by her father at no stage had complained about
her suffering any injury in her private part, any kind of bleeding, or any vaginal
discharge or suffering any kind of pain, which could have call for urgent medical
attention or in upsetting her regular schooling. Nothing of this sort has surfaced and
this creates doubt in our mind to suspect the prosecution case set up at the instance
of prosecutrix backed by her mother. We cannot lose our attention from the fact that
the father of the prosecutrix is after all a grown up and physically able bodied man and
if such a man commits sexual intercourse with a small child of 11 years, then there is
every likelihood that prosecutrix will suffer some injury on her private part or there
may occur some kind of tear in the vaginal canal which is usually quite narrow in the
case of minor child or at least suffering of a severe pain by such a minor child, but
nothing of this kind had happened to the prosecutrix. The PW-4 in her cross-
examination admitted the fact that her daughter ‘P’ was around 4-5 years when she
started cycling and she used to do swimming as well. PW-8 Dr. Deepti Goel on her cross-
examination also stated that the hymen can be torn on account of many reasons like
injuries from cycling or sports and if we look at the entire set of circumstances discussed
above, possibility cannot be ruled out that the hymen of the prosecutrix may have
been torn on account of activities like cycling and swimming and not because of the
alleged sexual assault by her father. So far as the opinion of the doctor in the MLC i.e.
‘introituses with two fingers with difficulty’ is concerned in a recent judgment of the
Apex Court in Lillu @ Rajesh v. State of Haryana, reported in AIR 2013 SC 1784 the
view taken was that the fact of admission of two fingers and hymen rupture does not
give a clear indication that the prosecutrix was habitual to sexual intercourse. Relevant
paragraph of the said judgment is reproduced as under:-
“Fact of admission of two fingers and the hymen rupture does not give a clear
indication that prosecutrix is habitual to sexual intercourse. The doctor has to opine as
to whether the hymen stood ruptured much earlier or carried an old tear. The factum
of admission of two fingers could not be held adverse to the prosecutrix, as it would
also depend upon the size of the fingers inserted. The doctor must give his clear
opinion as to whether it was painful and bleeding on touch, for the reason that such
conditions obviously relate to the hymen.”
63. In the light of the above discussion, we are not persuaded to agree with the
finding of the learned trial court that the appellant had raped his own daughter during
the period of November - December 2006.
64. So far as the deposition of PW-5, Yash Yadav is concerned, his testimony stating
that his father used to take his sister downstairs after locking the room from outside
24
and his sister once told him that his father has done wrong act with her, does not even
find support from the deposition of prosecutrix as in her court deposition, she has not
taken any such stand that her father used to lock the door from outside and then used
to take her downstairs and she did not even depose that she had told her brother that
her father used to do wrong act with her. Rather it appears from the cross-examination
of PW5 that his father was too caring as he used to drop both the children to school
and himself pick them up daily. His father used to drop both of them to tuition centre
and then personally used to pick them up and whenever he was not available for any
reason, he used to send someone for picking up the children. He has also deposed that
his sister used to visit all their relatives, who live nearby and his friends also used to
come to their house. The cross-examination of PW-5, gives a clear indication that there
was no restriction on the children and had there been any sexual assault upon the
daughter by the father then she had ample opportunities to have disclose this fact to
her mother, grandparents or near relatives.
65. We are also at loss to find that the learned trial court has not given any weightage
and credence to the unrebutted testimonies of Mr. Dharampal DW-12, DW-13 (Uncle),
DW-15 (Bua) and DW-18 (Appellant/Accused). DW-12 who is husband of friend of PW
-4 in his examination-in-chief stated that he was also threatened by PW4 to be
implicated in a false rape case when he had visited her parental house to demand his
money back. This testimony of DW-12 remain unrebutted and the said unrebutted
testimony of this witness shows that the mother of the prosecutrix had gone to the
extent of threatening him to falsely implicate him in a rape case just when he had
gone to demand for the return of his own money.
66. DW-13 Vijay Singh is the uncle of the appellant who in his examination-in-chief
deposed that he met Smt. Geeta (PW-4) and inquired her as to why she had falsely
implicated the accused and in response, she told him that she had got nothing from
the appellant while he had got custody of the children and divorce with the order of
the court as well as he got re-married and is leading a comfortable life. He further
deposed that PW-4 had told him that she would take revenge by taking recourse to
law and she also demanded Rs. 5 lacs and custody of the children for withdrawing the
said complaint. This testimony of DW-13 also remained unrebutted.
67. Ms. Sharda Yadav, DW-15 is the aunt of appellant and she also deposed on the
same lines as per the deposition of DW-13, i.e. of PW-4 Geeta demanding Rs. 5 lacs
and her showing complete frustration because of the appellant getting custody of the
children and having divorced her.
68. DW-18, the appellant himself has given a detailed account as to how he had
married Ms. Geeta and why his father was inimical towards him and also the detailed
reasons for his false implication by Geeta by tutoring and instigating her own daughter
and making her an instrument to take revenge from him and to get the legal custody
of the children and also to demand an amount of Rs. 5 lac. The examination-in-chief of
DW-18 on material aspects also remained unrebutted.
69. The deposition of DW-18 stated that in September 2006, Geeta came back from
South Korea and thereafter she met the children 3-4 times in school and also that
both the children on the weekends used to stay in his father's house and his father
used to make them speak on phone to Geeta and also that Geeta came to meet my
children in my house in my presence about 5 times after his re-marriage and before
filing of this case, remained unrebutted.
70. There is also no cross-examination of DW-18 testifying that on 14th February 2007,
25
.
he got married with Ms. Poonam and 4-5 days after the marriage, Geeta came to meet
the children and after seeing that the accused got re-married with Poonam, she
became angry and created a scene and started crying. Besides all, DW-18 stated that
in September 2007, PW2 and PW4 came to jail to meet him alongwith his aunt (bua)
and told him to comply with their condition for settlement to which he had refused and
again in February 2008, PW4 came with an agreement suggesting that the legal
custody of both the children would remain with Geeta and the accused will have to pay
Rs. 5 lacs as one-time payment with no visitation rights.
71. The evidence lead by the defence is not less important than the evidence of the
prosecution and therefore the defence evidence must also receive due consideration
wherever it succeeds in disproving the case of the prosecution with cogent and
convincing and credible evidence. Learned trial court perhaps has overlooked the
unrebutted testimonies of the said witnesses who have proved on record many
germane aspects to create a doubt and dent in the prosecution case.
72. It is true that in a case of rape, the evidence of the prosecutrix must be given pre -
dominant consideration and in certain cases even without any corroboration, testimony
of the prosecutrix should be given due credence and weight age as in all the rape
cases the prosecutrix suffer a great stress, trauma, humiliation and due to this factor
alone many cases of rape are not even reported by the victims. However, at the same
time, it cannot be denied that false allegation of rape can cause equal damage,
humiliation, embarrassment, harassment, disgrace and agony to the accused as well.
73. We have already discussed above the various facets of the present case which
indulge in disbelieving of prosecution story of prosecutrix being repeatedly raped by
her father during the period November - December 2006 and the wife of the accused
joined by his parents having made the prosecutrix a tool in their hands to settle their
own scores and the main target being to grab the custody of children and also the
alleged property of the accused. In arriving at such a conclusion, we will also draw
support from the following factors:
a) PW4 having met the appellant twice while appellant was in jail, in the present case.
This fact has been admitted by Geeta in her cross-examination and the reason given
by her to meet the appellant in jail was that she had gone to see the condition of the
accused as she had come to know that the accused was beaten in the jail. This reason
given by Geeta does not appear to us, to have any basis, had the accused been real
perpetrator of such a serious crime of committing rape of his daughter. The visit of the
Geeta to jail rather proves the defence version that she was trying to create pressure
on accused to pay a sum of Rs. 5 lacs and to agree for restoring back the legal custody
of the children.
b) In the cross-examination of PW4, she had admitted that she had met the accused
in the court and assured him of help. Again, she told that she had shown sympathy to
him as on one side is her daughter and on the other side is her husband. I still regard
accused as my husband. This deposition of the prosecutrix in her cross-examination is
also not fathomable as to how she could regard the accused as her husband after
being divorced and after he was allegedly found involved in committing rape of her
own daughter of 11 years of age.
c) The appellant was already having an affair with Poonam in October -November 2006
and in fact he got married with Poonam immediately after his divorce, i.e., on 14 th
February 2007. In this background, where the accused was also in relation with
another female to whom he was to marry, it was highly improbable for such a person
26
to indulge into sex with his own daughter, as normally only sex deprived persons
satisfy the urge for sex unmindful of their relationship with the victim of sex.
d) Comfort level of Ms. Poonam with the children as deposed by PW4 was fine and she
being a teacher was also taking due care of the studies of the children and in fact, the
academic performance of the prosecutrix had improved in her second term exams held
in November - December 2006.
e) On 29.12.2006, during winter vacations, the appellant with both the children and
Poonam went on a trip to Bombay and Shirdi. The photographs proved on record as
Ex.DW-18/A1 to DW18/A18 show them in a happy and joyful mood. There is a
separate photograph of the prosecutrix with the appellant and had the father been
involved in this sturdy act of raping her then the prosecutrix could not have been in
such a comfort zone with the father as appears from the photographs.
f) The repeated attempt of the father of the accused (PW-2) to dispossess Ms. Poonam
from the said Madipur Property and lodging of the complaint of Ms. Poonam vide FIR
No. 351/2008 under Section 354 of IPC.
g) Further in her complaint vide FIR No. 279/05, dated 19.07.2005, PW4 levelled the
allegations against the accused that he is a womanizer, accustomed to watch blue
movies in the company of his friends. However, even after putting such allegation she
gave the custody of her minor children to her husband.
74. The desire to take revenge is an evolved outgrowth of our human sense of
unsatisfied reciprocity. We can trace innumerable instances of revenge in the history
and also in our Hindu mythology. The feeling of revenge destroys the rationale and a
common sense even in an otherwise wisest person. At times the feeling of revenge is
so strong that the avenger himself also fails to realise the impact of his deeds and
easily get swayed by his emotions to wreck vengeance. In order to take revenge he
does not even mind doing gravest of act. An avenger may use various means to take
revenge. One such means can be process of law i.e. by false implication of the
aggressor.
75. The present case is based on somewhat similar facts. In this case the mother of
the Prosecutrix, driven by the feeling of revenge, has gone to the extent of falsely
implicating her husband for the rape of their daughter, being completely ignorant of
the shame she has brought to her entire family including herself, her daughter and her
husband by her such derogatory, disgraceful, intolerable and unacceptable conduct. At
the first blush of this case, it appeared to us that the father has really committed such
a heinous offence with his own daughter, however a deep scrutiny of all the evidences
taken together gives an altogether different picture. Although such cases of false
implication in offences especially like rape are rare but they are not uncommon. In the
matter of Radhu v. State of Madhya Pradesh reported in 2007 CriLJ 4704, the Hon'ble
Apex Court took a view that a false charges of rape are rare and there have been also
rare instances where the parents have persuaded a colourable and obedient daughter
to make a false charge of rape either to take revenge or extort money or to get rid of
financial liability. Relevant paragraph of the judgment is reproduced herein below:-
“The courts should, at the same time, bear in mind that false charges of rape are not
uncommon. There have also been rare instances where a parent has persuaded a
gullible or obedient daughter to make a false charge of a rape either to take revenge or
extort money or to get rid of financial liability. Whether there was rape or not would
depend ultimately on the facts and circumstances of each case.”
27
76. In the matter of Rajoo v. State of Madhya Pradesh reported in AIR 2009 SC 858
the Hon'ble Apex Court held as under:
“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.”
77. In the matter of Tameezuddin @ Tammu v. State of (NCT) of Delhi reported in

(2009) 15 SCC 566 the Hon'ble Apex Court held as under:
“It is true that in a case of rape the evidence of the prosecutrix must be given
predominant consideration, but to hold that this evidence has to be accepted even if
the story is improbable and belies logic, would be doing violence to the very principles
which govern the appreciation of evidence in a criminal matter. We are of the opinion
that story is indeed improbable.”
78. It is true that barbarity of the offence of rape cannot be overemphasized,

especially when we have witnessed the most gruesome and horrific instances of the
same nature in the recent past. The indifference that was created towards feral men
with the quotidian reporting of rape was followed by a furore bringing the heinousness
and depravity of the offence once again into the forefront, awakening the yet hitherto
dormant attitude of the society. However, this particular case before us has set forth a
contrarian maze which has compelled this court to look away, momentarily, at the
offence and look upon the impunity with which it has been trivialised by none else but
the own mother of the victim. It is unfortunate, that to seek revenge from her own
husband, she went to the extent of using her minor daughter as a tool to implicate
him of an offence such as rape. The facts and the circumstance of the case make it
amply clear that the grudge nursed by the mother of not being adequately
compensated during the divorce coupled with the fact that she made to agree for
handing once the legal custody of children in favour of her husband and above all the
remarriage of the husband capitulated her into plotting this devious cat. The common
belief that no women will fabricate an offence such as rape owing to its social and
mental ramification is undoubtedly flawed as is exemplified by the present case.
However, the plight of one's charged of the false rape cases, however rare, are also
abominable to say the least and understanding it would be an affront to decency. The
trauma of a man being falsely accused of raping his own flesh and blood is
unspeakable and unfathomable. The court is appalled as how the mother for her
personal vendetta compromise the wellbeing of her daughter to let her live for a
lifetime with such a stigma and scar of being raped by her own father. The question is
best left unanswered in the interest of humanity. Undoubtedly, wallowing in the
heartburn drove her to unimaginable lengths, in the lifelong shadow of which the man
has to live. In overall perspective cases like these are diluting the authenticity of
genuine cases obligating the courts to view every testimony of rape survivor with
suspicion rather than a gospel of truth and nevertheless it is nothing but a
monumental blow to the larger movement of society against the offence of rape.
79. Taking an overall view of the aforesaid facts of the present case, the judicial
conscious of the court impels us to disbelieve and disagree with the finding of the
learned trial court holding the appellant guilty of committing rape of his daughter in
the month of November - December 2006. The evidence produced by the prosecution
and even the medical evidence does not lead us to believe that the appellant had
committed a rape of his daughter.
28
80. In view of the aforesaid discussions, the appeal filed by the appellant is allowed
and the judgment passed by the learned trial court is set aside. It is ordered
accordingly.
81. The appellant is in custody and he be released forthwith, if not required in any
other case.
82. A copy of this order be sent to Jail Superintendant for necessary compliance.
———
notification is being circulated on the condition and understanding that the publisher would not be liable in any manne r by reason of any mistake
29
30
AIR 1956 SC 731 : 1956 Cri LJ 1365
In the Supreme Court of India

(BEFORE SUDHI RANJAN DAS , C.J. AND N.H. BHAGWATI AND S.K. DAS , JJ.)
CHIKKARANGE GOWDA AND OTHERS … Appellants;

Versus
STATE OF MYSORE … Respondents.
Criminal Appeal No. 1 of 1956 * , decided on May 9, 1956
Advocates who appeared in this case :
K.R. Chaudhury and K.R. Krishnaswami, Advocates, for the Appellants;
G. Channappa, Assistant Advocate-General, Mysore and P.G. Gokhale, Advocate, for
the Respondent.
The Judgment of the Court was delivered by
S.K. D AS, J.— This is an appeal by special leave from a decision of the High Court of
Mysore, dated 22nd July, 1954, by which the convictions and sentences of the
appellants were confirmed and their appeals dismissed by the said High Court.
2. The appellants are four in number, (1) Chikkarange Gowda (Accused 1), (2)
Govindaraju (Accused 3), (3) Govinda Gowda (Accused 14), (4) Mathi Kulla (Accused
19). The appellants, along with several others, were tried by the learned Sessions
Judge of Mysore, who convicted them of the offences under Sections 148, 302, and
302 read with Sections 34 and 149 of the Indian Penal Code. They were sentenced to
rigorous imprisonment for three years for the offence under Section 148 of the Indian
Penal Code, and to transportation for life for the offences under Section 302 and
Section 302 read with Sections 34 and 149 of the Indian Penal Code. Either during the
trial or at the time of recording the convictions, the learned Sessions Judge did not
make any distinction, nor did he clearly state which of the appellants were guilty of
the substantive offence of murder under Section 302 of the Indian Penal Code, and
which of them were guilty of the offence under Section 302 read with Section 149 of
the Indian Penal Code, or on the principle of liability embodied in Section 34 of the
Indian Penal Code. In the High Court also no such distinction appears to have been
clearly made, and the concluding paragraph of the judgment of the High Court simply
stated that the convictions and sentences of the appellants were confirmed and their
appeals were dismissed.
3. It is not necessary to say anything about those others who were convicted by the
learned Sessions Judge and whose convictions were upheld by the High Court of
Mysore, but who have preferred no appeals to this Court. The facts so far as they are
relevant for the purpose of this appeal may be very shortly stated. There were two
brothers named Putte Gowda and Nanje Gowda. On the 18th of April, 1951 the two
brothers were in the house of one Madamma, a concubine of Putte Gowda, in the town
of Talkad, stated to be a fairly populous town and a place of pilgrimage situate at a
distance of about 30 miles from Mysore. At about noon on that day, a mob of persons
numbering about more than a hundred, rushed towards the house, sprinkled kerosene
oil on the roof, and started burning the house. When the inmates of the house came
out, the two brothers (Putte Gowda and Nanje Gowda) were brutally assaulted. Putte
Gowda died then and there. Nanje Gowda lay unconscious and was taken to the
hospital where he expired the same evening. The first information report of the
occurrence was sent by the Daffadar to the Inspector of Police, who arrived the same
night and made a preliminary investigation. So far as the four appellants are
30
.31
concerned, the allegation was that they were members of the aforesaid mob; and that
Appellant 1 (Chikkarange Gowda) hit Putte Gowda on the abdomen with a cutting
instrument and Appellant 4 (Mathi Kulla) hit Putte Gowda on the knee with a chopper;
the second appellant Govindaraju, it was alleged, hit Nanje Gowda with a spear, and
the third appellant Govinda Gowda hit Nanje Gowda on the head with an axe.
4. We have already stated that several charges were framed against the appellants.
It is necessary to read at least one of the charges viz. the charge which was framed for
the offence stated to be under Section 302 read with Sections 149 and 34 of the
Indian Penal Code; because much of the argument before us has centred round that
charge. The fifth charge against Appellant 1 was in these terms:
“That you on or about the 18th day of April, 1951 at Talkad were member of an
unlawful assembly and in prosecution of the common object or intention or such as
you knew to be likely to be committed in prosecution of that object or intention,
namely, in killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda,
and you are thereby under Section 149 read with Section 34 of the Indian Penal
Code, guilty of causing the said murders, an offence punishable under Section 302
of the Indian Penal Code and within the cognizance of the Court of Session.”
5. Against the other appellants also there was a charge in similar terms. For the
substantive offence of murder there was a charge under Section 302 against Appellant
1 for killing Putte Gowda. Against Appellant 4, who was stated to have hit Putte Gowda
on the knee with a chopper, there was no charge of murder for killing Putte Gowda;
though there was a charge of murder against him for killing Nanje Gowda. Against the
other two appellants, Govindaraju and Govinda Gowda, there was a charge for the
substantive offence of murder for the death of Nanje Gowda. Against all the appellants
there were charges under Section 148 of the Indian Penal Code. In those charges, as
also in the charge framed under Section 302 read with Sections 149 and 34 of the
Indian Penal Code, the common object of the unlawful assembly was stated to be the
killing of Putte Gowda.
6. The learned Sessions Judge, it appears, found that the appellants had reasons to
be angry with Putte Gowda — reasons which in his opinion were sufficient to establish
a motive for the offences committed; and the common object of the unlawful assembly
or the intention of the appellants, as the learned Sessions Judge put it, was not merely
to assault Putte Gowda but to kill him. The learned Judges of the High Court, however,
held that there was no evidence to prove or establish any plan for concerted action or
any common object to kill Putte Gowda, and they observed: “The evidence on record is
altogether in sufficient to prove expressly the common object alleged in the charge so
far as the appellants are concerned”. On a consideration of the evidence, they found
that whatever might have been the reasons for the people of the locality to be vexed
with Putte Gowda, the common object which might properly be ascribed to the
assembly as a whole was to give Putte Gowda a severe and open chastisement only.
The learned Judges further stated: “Such of the accused as were members of the
assembly must be deemed to have had this object, and not that of killing Putte
Gowda. They are liable only for acts in prosecution of the said object, the responsibility
for acts not warranted by the common object being that of the individuals concerned”.
Having given the aforesaid finding with regard to the common object, they proceeded
to consider the individual acts committed by the appellants. They held that, so far as
Appellants 1 and 4 were concerned, they assaulted Putte Gowda — one on the
abdomen and the other on the knee, along with another person who caused the fatal
neck injury to Putte Gowda, and they said that these three persons acted jointly and
had the common intention of killing Putte Gowda. It may be stated here that the
particular accused person (Accused 6) who was said to have caused the neck injury to
Putte Gowda was acquitted by the High Court on the ground that the evidence against
him was not sufficient for a conviction. As respects Appellants 2 and 3, the High Court
31
32
held that both had severely assaulted Nanje Gowda, and both were guilty of murder.
7. We have summarized above the findings of the High Court with regard to the
four appellants. The main defence of the appellants was that they were not guilty, and
the evidence against them was false.
8. Learned counsel for the appellants has contended before us that on the finding
arrived at by the High Court with regard to the common object of the unlawful
assembly, the conviction of the appellants for an offence under Section 302 read with
Section 34 or Section 149 of the Indian Penal Code is bad in law; that not only was
there no clear charge under Section 34 against the appellants, but in view of the
findings of the High Court and the manner in which the charge under Sections 149
and 34 was mixed up, the appellants who have been held guilty on the principle of
liability embodied in Section 34, have had no proper notice, nor a reasonable
opportunity of meeting such a charge, and the conviction of two of the appellants for
the offence under Section 302 of the Indian Penal Code, in respect of the death of
Nanje Gowda, is not justified on the findings of the High Court. Learned counsel has
also made grievance of a non-compliance with the provisions of Section 342 of the Cr
PC, and has contended that the appellants have been prejudiced by the failure of the
learned Sessions Judge to give them an opportunity of explaining the circumstances
which have been used against them. Learned counsel has also addressed us on certain
questions of fact depending on an appreciation of evidence, and has submitted that
the witnesses who say that they saw the assault on the two brothers from the
threshold of the house were not in a position to see the assault from that place. It is,
however, a well-settled practice of this Court that except where there has been an
illegality, or an irregularity of procedure, or a violation of the principles of natural
justice, resulting in an absence of fair trial or a gross miscarriage of justice, this Court
does not permit a third review of evidence with regard to questions of fact in cases in
which two courts of fact have appreciated and assessed the evidence with regard to
such questions.
9. We propose, therefore, to deal with such of the contentions of learned counsel as
are based on his submissions (a) that the findings of the High Court do not justify the
convictions of the appellants, (b) that there has been a failure to comply with the
provisions of Section 342 of the Cr PC, and (c) that the appellants had no notice, nor a
reasonable opportunity, of meeting the case of a separate common intention of three
persons, as distinct from the common object of the unlawful assembly.
10. It is quite clear to us that on the finding of the High Court with regard to the
common object of the unlawful assembly, the conviction of the appellants for an
offence under Section 302 read with Section 149 Indian Penal Code cannot be
sustained. The first essential element of Section 149 is the commission of an offence
by any member of an unlawful assembly; the second essential part is that the offence
must be committed in prosecution of the common object. In the case before us, the
learned Judges of the High Court held that the common object of the unlawful
assembly was merely to administer a chastisement to Putte Gowda. The learned
Judges of the High Court did not hold that though the common object was to chastise
Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely
to be killed in prosecution of that common object. That being the position, the
conviction under Section 302 read with Section 149 Indian Penal Code was not
justified in law.
11. So far back as 1873, in Queen v. Sabid Ali1 it was pointed out that Section 149
did not ascribe every offence which might be committed by one member of an
unlawful assembly while the assembly was existing, to every other member. The
section describes the offence which is to be so attributed under two alternative forms:
(1) it must be either an offence committed by a member of the unlawful assembly in
32
33
prosecution of the common object of that assembly; or (2) an offence such as the
members of that assembly knew to be likely to be committed in prosecution of that
object. In Barendra Kumar Ghosh v. King-Emperor 2 the distinction between Sections
149 and 34 of the Indian Penal Code was pointed out. It was observed that Section
149 postulated an assembly of five or more persons having a common object, namely,
one of those objects named in Section 141, and then the doing of acts by members of
the assembly in prosecution of that object or such as the members knew were likely to
be committed in prosecution of that object. It was pointed out that there was a
difference between common object and common intention; though the object might
be common, the intention of the several members might differ. The leading feature of
Section 34 is the element of participation in action, whereas membership of the
assembly at the time of the committing of the offence is the important element in
Section 149. The two sections have a certain resemblance and may to a certain extent
overlap, but it cannot be said that both have the same meaning. The distinction
between the two sections was again explained in a recent decision of this Court.
(Nanak Chand v. State of Punjab 3 (Criminal Appeal No. 132 of 1954, decided on 25th
January, 1955).
12. In the case under our consideration the charge framed against the appellants
mixed up the two sections in a very unusual manner. The charge which we have
quoted in an earlier part of this judgment was really a charge under Section 149 of the
Indian Penal Code. It gave no notice to the appellants that three of them had a
separate common intention of killing Putte Gowda, different from that of the other
members of the unlawful assembly. The charge did not mention any such separate
common intention, and on the finding arrived at by the learned Judges of the High
Court with regard to the common object of the unlawful assembly, none of the
members of the unlawful assembly had the intention to kill Putte Gowda, nor did any
of them know that Putte Gowda was likely to be killed in prosecution of the common
object of chastisement. In these circumstances, the learned Judges of the High Court
were in error in holding two of the appellants, Appellant 1 and Appellant 4, guilty of
the offence of murder on the principle of liability embodied in Section 34 of the Indian
Penal Code. It is true that Section 34 embodies a principle of joint liability in the doing
of a criminal act, and the essence of that liability is the existence of a common
intention. In the case before us, the two appellants who have been held to be liable
under Section 34 are Appellant 1 (Chikkarange Gowda) and Appellant 4 (Mathi Kulla).
None of these two persons caused any fatal injury to Putte Gowda. Appellant 1 hit
Putte Gowda on the abdomen with a cutting instrument, and the learned Judges
found, on the medical evidence in the record, that the injury on the abdomen was not
fatal in nature. The other appellant, Mathi Kulla, hit on the knee with a chopper, which
was clearly not a fatal injury. In our view, on the findings of the High Court these two
appellants were not liable under Section 302 read with Section 34 of the Indian Penal
Code, further more, the charge framed against them gave them no notice of any joint
liability on the basis of a separate common intention to kill Putte Gowda. On the
finding of the High Court, none of the members of the unlawful assembly had the
intention of killing Putte Gowda. We are further of the view that the way in which the
charge under Section 302 read with Sections 149 and 34 was framed gave the
appellants no effective notice that they had to meet the case of a separate common
intention of three persons, as distinct from the object of the other members of the
unlawful assembly. In these circumstances the question was not whether a specific
charge under Section 34 was or was not necessary the point is that the appellant had
no notice nor a reasonable opportunity of meeting a case that some of them had a
separate common intention different from that of other members of the unlawful
assembly. Therefore, the conviction of the appellants Chikkarange Gowda and Mathi
Kulla for an offence under Section 302 read with Section 34 cannot be sustained.
33
34
13. As the learned Judges of the High Court themselves put it, the appellants will
be held responsible for such of their individual acts as went beyond the common
object of the unlawful assembly. The conviction of the appellants for the offence under
Section 148 of the Indian Penal Code is correct but not their conviction under Section
302 read with Section 149 of the Indian Penal Code, nor their conviction under Section
302, read with Section 34 of the Indian Penal Code.
14. Turning now to the individual acts of the appellants, Chikkarange Gowda,
Appellant 1 hit Putte Gowda on the abdomen with a sickle. The medical evidence on
the record shows that the injury caused was an oblique, boat shaped, incised wound of
6″ × 3½″ × 3″ deep leading to the abdominal cavity. There can be no doubt that the
injury was caused by a cutting instrument like a sickle and was one which endangered
life. It was a grievous hurt of the nature mentioned in the last clause of Section 320,
Indian Penal Code. For this individual act of assault, Chikkarange Gowda is
undoubtedly guilty of an offence under Section 326 of the Indian Penal Code. There
was a substantive charge under Section 302 of the Indian Penal Code against him for
killing Putte Gowda, and there can be no legal difficulty in convicting him of the lesser
offence of causing grievous hurt under Section 326 of the Indian Penal Code.
15. Mathi Kulla, Appellant 4 hit Putte Gowda on the knee with a chopper, an offence
which may come under Section 324 of the Indian Penal Code. There was, however no
charge against him under Section 302 of the Indian Penal Code in respect of the
assault on Putte Gowda and in view of his conviction and sentence under Section 148
of the Indian Penal Code, it is unnecessary to consider the application of Section 324
of the Indian Penal Code. There was a charge under Section 302 of the Indian Penal
Code against him for causing the death of Nanje Gowda. He was not, however,
convicted of that charge by the learned Judges of the High Court.
16. Govindaraju, Appellant 2 is said to have hit Nanje Gowda with a spear. We have
examined the medical evidence with regard to the injuries sustained by Nanje Gowda.
There was no spear wound on Nanje Gowda, which could be definitely connected with
the blow said to have been given by Govindaraju. In this state of the evidence, the
conviction of Govindaraju for an offence under Section 302 of the Indian Penal Code
for the death of Nanje Gowda cannot be sustained.
17. Lastly, there is Govinda Gowda, Appellant 3. He hit Nanje Gowda on the head
with an axe. The medical evidence shows that Nanje Gowda had six injuries on his
head. The doctor, Prosecution Witness 10, said that each of these injuries sustained by
Nanje Gowda was individually fatal. Having regard to the blows which Govinda Gowda
gave on the head of Nanje Gowda by means of an axe and the medical evidence that
each of the injuries which were sustained by Nanje Gowda on the head was sufficient
in the ordinary course of nature to cause the death of Nanje Gowda, there can be no
doubt that for his individual act Govinda Gowda was rightly found guilty under Section
302 of the Indian Penal Code.
18. It is necessary now to say a few words about the failure to comply with the
provisions of Section 342 of the Cr PC. This Court has, on more than one occasion,
stated that compliance with the provisions of Section 342 is not a mere idle formality
and we are in agreement with the comment made by the learned Judges of the High
Court that in this case the examination of the appellants to enable them to explain the
circumstances appearing against them was neither full nor very satisfactory. We also
agree with them that no serious prejudice was caused — such as to vitiate the whole
trial. The case of the appellants was that they were not in the mob and the evidence
against them was false. The courts below took that defence into consideration, and any
questions as to the weapons used — questions which learned counsel for the
appellants has suggested should have been put — would only have elicited a denial
from the appellants. In any view, such questions were put to Govinda Gowda, whose
34
35
conviction we are upholding.

19. The result, therefore, is that though there are no reasons for interference with
the convictions and sentences of the appellants under Section 148 of the Indian Penal
Code, their convictions and sentences under Section 302 read with Section 149 of the
Indian Penal Code or Section 302 read with Section 34 of the Indian Penal Code are
set aside. Appellant 1, Chikkarange Gowda, is also acquitted of the charge under
Section 302 of the Indian Penal Code, but is instead convicted under Section 326 of
the Indian Penal Code and sentenced to rigorous imprisonment for five years, and the
conviction of Govinda Gowda under Section 302 of the Indian Penal Code for having
caused the death of Nanje Gowda is confirmed and the sentence of transportation for
life imposed on him is maintained. The two other appellants, Govindaraju and Mathi
Kulla, are acquitted of all the charges except the charge under Section 148 of the
Indian Penal Code, under which their convictions and sentences are maintained.
———
* Appeal by Special Leave from the Judgment and Order dated 22nd July, 1954 of the High Court of Judicature for
the State of Mysore at Bangalore in Criminal Appeals Nos. 61 of 1952 -1953 and No. 1 of 1953 arising out of the
judgment and order dated 15th November, 1952 of the Court of Sessions Judge, Mysore Division, Mysore in
Mysore Sessions Case No. 4 of 1952-53)
1 20 Weekly Reporter (Criminal) 5

2 52 Indian Appeals 40
3 (1955) 1 SCR 1201
35
36
AIR 1965 SC 257 : (1965) 1 Cri LJ 242
In the Supreme Court of India

(BEFORE K. SUBBA RAO AND J.R. MUDHOLKAR , JJ.)
GURDATTA MAL AND OTHERS … Appellants;

Versus
STATE OF UTTAR PRADESH … Respondent.
Criminal Appeal No. 180 of 1961 * , decided on February 5, 1964
Advocates who appeared in this case :
Jai Gopal Sethi, Senior Advocate (R.L. Kohli, Advocate, with him), for the
Appellants;
A.N. Mulla, Senior Advocate (Atiqur Rehman and C.P. Lal, Advocates, with him), for
the Respondent.
The Judgment of the Court was delivered by
K. SUBBA RAO, J.— This appeal by special leave is directed against the judgment of
the High Court of Judicature at Allahabad setting aside the acquittal made by the
Additional Sessions Judge, Kumaun, Nainital, and convicting the appellants under
Section 302, read with Section 34 of the Indian Penal Code and sentencing them to
imprisonment for life.
2. The prosecution case may be briefly stated. Gurucharan Lal, one of the deceased,
had title to and was in physical possession of Plot No. 57 in the village of Azadnagar.
On April 10, 1960, Gurucharan Lal, accompanied by Bhagwan Swarup, Amrit Lal, Nand
Singh and Mohan Prakash, left his house in Rudrapur for Azadnagar to harvest the crop
standing on the said plot. Bhagwan Das also had a plot in the same village in his name
and he also started to go there to harvest his crop. As they anticipated some trouble
from the accused persons, appellants herein, enroute to Azadnagar they went to Police
Station Kiccha, which was on their way, and lodged two reports therein, Exs. Ka-1 and
Ka-2. It was alleged therein that there was an apprehension of breach of peace from
the side of the accused. The Head-Constable of the said police station, in consultation
with the Sub-Inspector, sent two Constables, Khem Singh (PW 2) and Chandra Singh
(PW 8) to go along with them to the said village. Gurucharan Lal and his companions
were joined on their way by Gainda Mal, Gurucharan Lal's father, and one Kalyan, a
labourer. The party reached the village at about 8 a.m. and started cutting the crop
standing on Plot No. 57. Half an hour thereafter, Baldeo Raj and Madan Lal, accused,
reached there and told the said two Constables that they were wanted by the Station
Officer at the police station. At first they refused to go, but later Chandra Singh (PW
8), one of the two Constables, accompanied by the said two accused proceeded to the
police station. After going a short distance, the said two accused asked Chandra Singh
to go to the police station by himself as they were returning to their houses. About
half hour later, Madan Lal (Appellant 4), Baldeo Raj, Gurdatta Mal (Appellant 1),
Harbans Lal (Appellant 2), Pyare Lal (Appellant 3) and Gopal Das came to the said
field. Of these persons, Gurdatta Mal, Pyare Lal and Madan Lal were armed with guns;
Harbans Lal was armed with a spear; Baldeo Raj and Gopal Das were armed with
lathis. When they approached the field, Constable Khem Singh asked them to stop and
not to proceed further. But they entered the field and fired their guns killing Gainda
Mal, his son Gurucharan Lal and one Nanda Singh, a photographer brought by the
complainant's party to take photographs of the accused in case they attacked them.
Bhagwan Swarup was assaulted by those who had lathis and was injured. Bhagwan
Das and the remaining persons then ran away from the field raising alarm.
36
37
3. The appellants and two others, Baldeo Raj and Gopal Das, were put up for trial
before the Additional Sessions Judge, Kumaun, for committing offences under Sections
302/149, 323/149, 147 and 140 of the Indian Penal Code. Appellants 1, 3 and 4 were
further charged for an offence under Section 19(f) of the Arms Act.
4. It would be convenient at this stage to notice the defence version which is as
follows: Plot No. 57 was in the cultivatory possession of the appellants and crops
standing thereon were raised by them. On April 10, 1960, at about 8.30 a.m. they
came to know that Gurucharan Lal had gone to the said plot with 25 persons to cut the
crop. In order to stop them from wrongfully cutting their crop, the appellants went to
the plot armed with guns spears and lathis, because they had come to know that the
party of Gurucharan Lal comprised 25 persons armed with deadly weapons. Having
come to the plot, they asked Gurucharan Lal and his men not to cut the crop. But
Bhagwan Das and his party advanced to assault them. Bhagwan Das actually fired a
shot towards them. Apprehending danger to their lives and property, the appellants'
party fired their guns in defence on the party of Gurucharan Lal.
5. The learned Additional Sessions Judge, Kumaun, held on the evidence that on
the date of the incident the appellants were in possession of the said plot and also
owned the crop standing thereon. He further held that Gurucharan Lal's party were
also armed with lathis, pharsa, and sickles, which were used for cutting the crop. If
Gurucharan Lal and his party, so armed, had assaulted the accused, it clearly involved
a risk of the accused being grievously hurt if not actually killed; the learned Judge
proceeded to hold that in the circumstances the accused had the right of defence of
their body to the extent of causing the death of their assailants. He further held that in
the said circumstances, the accused had also the right of private defence of their
property. In that view he acquitted all the appellants of the charge of murder. But he
convicted Gurdatta Mal and Madan Lal under Section 19(1) of the Arms Act on the
ground that they had no licence for the guns used by them in shooting the deceased,
and sentenced them to imprisonment for two years.
6. Two appeals were filed in the High Court at Allahabad against the judgment of
the Additional Sessions Judge — one appeal was by the State against that part of the
order of the Additional Sessions Judge acquitting the accused, and the other was by
the accused, Gurdatta Mal and Madan Lal, against that part of the order convicting
them under Section 19(f) of the Arms Act. The High Court accepted the finding of the
learned Additional Sessions Judge that the appellants were in cultivatory possession of
Plot No. 57 and that they had also raised the crop thereon, but held that the finding of
the Additional Sessions Judge in regard to possession of lethal weapons by the
deceased and their party was based upon conjecture and speculation. It accepted the
evidence adduced by the prosecution and came to the conclusion that the only right
available to the accused was to prevent the commission of theft of property by
Gurucharan Lal and his party and, therefore, they had no right of private defence
under Section 103 of the Indian Penal Code to cause the death of the members of
Gurucharan Lal's party. In any view, insofar as Nanda Singh, the photographer, was
concerned, who was wholly unarmed, the High Court found that the appellants had
neither the right of private defence of person nor of property. In regard to others,
having held that they had only the right of private defence to the extent of causing
harm other than death, it proceeded to hold that only such of the accused as were
responsible for causing gunshot injuries and spear injuries were liable under Section
302, read with Section 34 of the Indian Penal Code. The High Court found on the
evidence that Gurdatta Mal, Appellant 1, shot Gainda Mal to death; Madan Lal,
Appellant 4, had fired on Nanda Singh killing him on the spot; Pyarelal, Appellant 3,
had fired on Gurucharan Lal resulting in his death; and that Harbans Lal, Appellant 2,
attacked Gurucharan Lal, the deceased, with his spear on the head, which in the
37
.38
opinion of the doctor was sufficient in the ordinary course of nature to cause death. In
that view, the High Court convicted all the said accused under Section 302 of the
Indian Penal Code. The High Court maintained the acquittal of Baldeo Raj and Gopal
Das. It agreed with the Additional Sessions Judge that Gurdatta Mal and Madan Lal
were in possession of guns without licence and, therefore, they were liable under
Section 19(f) of the Arms Act. In the result, the State appeal was allowed in part and
the appeal filed by Appellants 1 to 4 was dismissed. Hence the present appeal.
7. The arguments of Mr Sethi, learned counsel for the appellants, may be briefly
stated thus: (1) The Additional Sessions Judge, on a consideration of the entire
evidence in the case, maintained the plea of private defence raised by the appellants
and acquitted them, and the High Court went wrong in setting aside that order,
though a different view was possible on the evidence. (2) The High Court erred in
holding on the facts of the case that Gurucharan Lal and his party were not committing
any offence of robbery and, therefore, the appellants had no right of private defence of
property under Section 103 of the Indian Penal Code extending to the voluntarily
causing the death of the deceased; that apart, the High Court went wrong in ignoring
one of the ingredients of robbery, namely, the fear of instant death or of instant harm.
(3) The High Court, having held that only such of the accused who exceeded the right
of private defence, would be liable under Section 302 read with Section 34 of the
Indian Penal Code, went wrong in upsetting the finding of the learned Additional
Sessions Judge, who rejected the evidence of PWs 2 and 6, and holding without
considering the said evidence that each of the appellants had committed a particular
act against a particular deceased. (4) In any view, the High Court, having held that
the accused had exceeded their right of private defence, should have held, by app lying
Exception 2 of Section 300 of the Indian Penal Code, that they were guilty only of
culpable homicide not amounting to murder. And (5) the High Court also erred in
convicting Gurdatta Mal and Madan Lal under Section 19(f) of the Arms Act, as they
only used guns of their close relatives.
8. The recent decisions of this Court have finally decided the scope of an appeal
against an order of acquittal. In Sanwant Singh v. State of Rajasthan1 this Court has
held that in an appeal against acquittal an appellate court has an undoubted power to
review the entire evidence and to come to its own conclusion, but in doing so it should
not only consider every matter on record having a bearing on the questions of fact and
the reasons given by the court below in support of its order of acquittal in its arriving
at a conclusion on those facts, but should also express those reasons in its judgment,
which lead it to hold that the acquittal was not justified. It also accepted the principle
laid down in Sheo Swarup case2 in regard to an appellate court's approach to a case in
disposing of such an appeal. This decision was accepted by a later decision of this
Court in Harbans Singh v. State of Punjab 3 . In the present case, having heard the
arguments of learned counsel at a considerable length, we do not see any justification
for the comment that the High Court had not borne in mind either the principles laid
down in Sheo Swarup case 2 or those laid down in the aforesaid two decisions. As the
High Court pointed out, the learned Additional Sessions Judge based his conclusion on
pure surmises contrary to the entire evidence that the deceased were armed with
deadly weapons and that the said error vitiated his conclusion that the accused had
the right of private defence to kill them. The justification for the High Court's
interference with the order of acquittal made by the learned Additional Sessions Judge
will be made clear in the course of our judgment.
9. As the arguments of learned counsel appearing for the appellants as well as for
the State turn upon the right of private defence of property to cause death in its
impact on the offence committed, read with Section 34 of the Indian Penal Code, it
will be convenient to notice the scope of the relevant aspect of Section 33 of the said
Code in the context of the said right of private defence. Section 34 of the Indian Penal
38
39
Code reads:
“When a criminal act is done by several persons, in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if
it were done by him alone.”
10. Under Section 96 of the Code, “Nothing is an offence which is done in the
exercise of the right of private defence”. Section 103 thereof reads:
“The right of private defence of property extends, under the restriction
mentioned in Section 99, to the voluntary causing of death or of any other harm to
the wrong-doer, if the offence, the committing of which, or the attempting to
commit which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated….”
11. It is well settled that Section 34 of the Indian Penal Code does not create a
distinct offence: it only lays down the principle of joint criminal liability. The necessary
conditions for the application of Section 34 of the Code are common intention to
commit an offence and participation by all the accused in doing act or acts in
furtherance of that common intention. If these two ingredients are established, all the
accused would be liable for the said offence; that is to say, if two or more persons had
common intention to commit murder and they had participated in the acts done by
them in furtherance of that common intention all of them would be guilty of murder.
In that situation Section 96 of the Code says that nothing is an offence which is done
in the exercise of the right of private defence. Though all the accused were liable for
committing the murder of a person by doing an act or acts in furtherance of the
common intention, they would not be liable for the said act or acts done in furtherance
of common intention, if they had the right of private defence to voluntarily cause
death of that person. Common intention, therefore, has relevance only to the offence
and not to the right of private defence. What would be an offence by reason of
constructive liability would cease to be one if the act constituting the offence was done
in exercise of the right of private defence. To illustrate, if a person was guilty of
murder by doing an act in furtherance of a common intention with others to commit
murder, he could sustain the plea of the right of private defence only by establishing
that he had the right to cause death of that person. It is true that, in ascertaining
whether a group of person had common intention to murder, the evidence adduced by
the defence that they had common intention only to cause hurt is irrelevant. But once
it is established that the common intention was to commit murder, the question of
separate individual liability in the context of private defence would be out of place.
Under Section 103 of the Indian Penal Code, the right of private defence of property
extends, under the restrictions mentioned in Section 99 thereof, to the voluntary
causing of death, if the offence, the committing of which or attempting to commit
which occasions the exercise of the right falls in one of the categories mentioned
therein. That is to say, if it was not one of the offences enumerated therein, the person
had no right of private defence extending to the voluntary causing of death. If in the
instant case the accused were not able to establish that the offence fell in one of the
categories enumerated therein, they would be liable for murder, as all of them
participated in the offence pursuant to the common intention to commit murder. In
most of the cases, the discussion of the evidence in compartments — one relating to
the offence and the other to the right of private defence — may not be possible, for
almost always the evidence relating to one part will have impact on the other part, and
the court in considering whether the accused are liable constructively for murder will
have to consider also the evidence of the defence that their common intention was not
to commit murder but only to protect their right and to cause hurt, if necessary.
12. With this background let us look at the facts of the case. Both the courts found
that on April 10, 1960, the accused were in possession of the said field and also were
39
40
entitled to cut the crop thereon. But it is also an admitted fact that on March 21, 1960,
the Munsiff decreed the suit filed by Gurucharan Lal and held that possession of Madan
Lal and Baldeo Raj over the said plot had not been established. Gurucharan Lal also
obtained an order of relinquishment from J.B. Singh, Colonization Officer, in respect of
the said plot on the basis of the civil court's decree. It is said by learned counsel for
the appellants that an appeal has been filed against that decree and an interim order
of stay of execution of that decree has been obtained. Be it as it may, on April 10,
1960, Gurucharan Lal, had a serious claim for the possession of the said plot. On the
basis of the civil court's decree and the relinquishments made by the Colonization
Officer, Gurucharan Lal, accompanied by Bhagwan Das, Harnam Singh, Bhagwan
Swarup, Nand Singh, Amrit Lal and Mohan Prakash left his house to harvest the crop
standing on the said field. That they were anxious to avoid a fight with the appellants
is also clear from the fact that they went to the Police Station Kichhe, lodged two
complaints therein and brought with them to the field two constables. Further, they
brought a photographer with them who was one of the victims, to the plot to take
photographs of any untoward incident that might take place. It is true that the
prosecution party, including labourers were about ten, the exact number is not
material. This attitude on the part of Gurucharan Lal and his party reflects the peaceful
intention on their part. Would any person bring policemen with him and also a
photographer if his intention was to use deadly weapons against his opponents? Would
it not be more reasonable to assume that their intention was to cut the crop peacefully
under the protection of the police escort? The next important circumstance is, were
they in possession of deadly weapons? The learned Additional Sessions Judge held
that they had; but the High Court pointed out that the conclusion was based purely on
surmises. It is true that at the scene of occurrence there were some weapons. D.P.
Singh, the Sub-Inspector, as PW 10 said that when he reached the place of occurrence
he found, among other things, two lathis, a pharsa and a spear blade lying there. The
spear blade was twisted at its upper part. The learned Additional Sessions Judge
posed the question, as according to the prosecution none of the accused was armed
with pharsa and that the accused had overpowered Gurucharan Lal's party, would they
leave any weapons on the scene of occurrence, and answered the question that the
two lathis and pharsa and sticks found by the Sub-Inspector belonged to Gurucharan
Lal's party. It is also true that the labourers had some sickles with them for cutting the
crop; but there is no evidence in this case that the prosecution party were armed with
lathis, pharsa or spears. None of the prosecution witnesses deposed to that effect. The
High Court pointed out further that even the accused did not say in their statements
that the said weapons were left by the complainant's party while running away from
the field. Learned counsel commented on the fact that the said statement was
inaccurate. He referred us to the statement of Gurucharan Lal made before the
Additional Sessions Judge wherein he said that the accused had taken weapons with
them, because they had come to know that Gurucharan Lal and members of his party
were also possessed of guns, pharsa and lathis. This statement does not mean that
the complainant's party ran away from the field leaving these weapons therein.
Indeed, the statement that they had guns and spears had been held to be false. The
existence of the twisted spear on the plot indicates that it must have been used and it
could have been used only by the accused, for there were admittedly no wounds
caused on the body of any of the accused by spear or pharsa. Nor was any suggestion
made in the cross-examination of the Sub-Inspector or of the police constables that
Gurucharan Lal or members of his party were carrying any deadly weapons either at
the time when they came to the police station or at the time they reached the field.
The probabilities are also against the complainant's party carrying any deadly weapons
with them. They would not have carried such weapons with them when they went to
the field under police protection. Secondly, if they had deadly weapons and if they had
40
41
used the spear as the twisted spear indicated, there must be some injuries on the
body of any of the accused. The fact that Gurucharan Lal and his party took a
photographer with them also improbabilizes the fact that the complainant's party had
deadly weapons with them, for the purpose for which the photographer was taken
would be defeated if they were caught in the photograph with deadly weapons in their
hands. For all these reasons, the High Court rightly set aside the finding of the learned
Additional Sessions Judge that the complainant's party had deadly weapons in their
hands.
13. The prosecution in support of its case examined six eye-witnesses, PWs 1 to 6,
and others and they deposed supporting the prosecution version, which we have
already given at the earlier stage of the judgment. Their evidence was accepted by the
High Court. It brings out the following salient facts: (1) The four appellants are closely
related to each other — Appellants 2 to 4 are the sons of Appellant 1, Gurdatta Mal.
(2) There were criminal and civil proceedings pending between the accused on the one
hand and Gurucharan Lal on the other in respect of Plot No. 57. (3) Three of the
accused went to the field armed with guns and one of them with a spear. (4) They
attempted to send away the two constables on a false pretext, but were able to send
only one of them. (5) The appellants, after entering the field, proceeded close to their
victims and shot them dead at point-blank range. (6) Nanda Singh had three gunshot
injuries, two of them were wounds of entry and the third was a wound of exit; the
three wounds were in front of the chest, middle and lower part; there was blackening
and scorching around the wounds; besides the three gunshot injuries Nanda Singh
had one contused wound and two bruises on his body; Gainda Mal, deceased, had 5
gunshot wounds, one being a wound of entry and the other four being wounds of exit;
he had also been shot at close range in the region of the chest and the doctor found a
comminuted fracture of the left scapular bone with extensive laceration of left shoulder
-joint due to gunshot injury; Gurucharan Lal, deceased, had 8 gunshot injuries, five of
them being wounds of entry and the remaining three being wounds of exit; the
wounds were close together in an area of 4″ × 4″ on left lumber region; there were
also four punctured wounds on the deadbody, one of these being on the left side of
forehead, ¾″ above the eye with fracture of the frontal bone underneath; on internal
examination the peritoneum was found lacerated and fractured in five places and was
full of clothed blood; the abdominal cavity was also full of blood and the small
intestines were perforated in two places and the large intestines were extensively
lacerated; two shots were extracted from the abdominal cavity; there was also found a
depressed fracture of frontal bone on the left side 3″ × ½″ and a fissured fracture 3″
long in continuation of Injury 5 which was a punctured wound on the left side of the
forehead; the brain was extensively lacerated on front left side; there was a fracture of
anterior fossa of the left side of the base of skull. The wounds found on the deadbodies
indicate that firearms and a sharp weapon were used and that the firearms were used
at a close range.
14. The Sub-Inspector recovered blood from inside the field and the dead bodies
were also found lying inside it. Even the photographer was shot dead. The High Court
relying upon the aforesaid evidence and the circumstances held that the appellants,
with the common intention of committing murder, made all the preparations, entered
the field and shot at the deceased from a close range without any resistance being
offered by the deceased. Mr Sethi, learned counsel for the appellants, after taking us
through the details of the plan of the suit field, argued that the line of cutting
operation of crops was quite removed from the place where the dead bodies were
found and that if the accused had come determined to killthe deceased, they would
have fired at the sight of the victims and from some distance and in that case the
bodies would have been found near the point where cutting was going on. This
argument is only based on probabilities and on certain premises. There is no clear
41
42
evidence where exactly the three victims were at the time the accused came to the
field. We cannot presume that they were at a particular place and rushed at the
accused, for that fact is contrary to the entire evidence in the case. The situation of the
dead bodies, the fact that gunshots were fired from a close range and the fact that
none of the accused was injured, are more consistent with the clear evidence adduced
in the case than with the hypothesis suggested by the learned counsel. We, therefore,
see no justification to interfere with the finding arrived at by the High Court that the
appellants, with common intention to kill the deceased, armed themselves with guns
and spears and attacked the deceased from a close range immediately after coming to
the field and killed them in the manner the prosecution witnesses deposed. They were
certainly guilty under Section 302 read with Section 34 of the Indian Penal Code.
15. If that be so, the next question is whether the accused had the right of private
defence extending to the voluntary causing of death. The High Court held that the
accused had no right of private defence of property extending to the causing of death,
for the deceased while attempted to cause instant death or instant harm to any
particular accused. To put it in other words, the High Court held that the conditions
laid down in Section 103 of the Indian Penal Code had not been satisfied and that the
acts of deceased did not amount to robbery. Learned counsel for the appellants
contends that the High Court missed one of the ingredients of the definition of
robbery, namely, that theft would be robbery if the offender caused fear of instant
death or of instant harm. It is further argued whether the deceased had attempted to
cause instant death or injury or not, the circumstances were such that there was a
reasonable apprehension of fear or instant death or instant hurt, as the deceased and
their companions were more than 10 in number and some of them were armed with
sickles and bend upon cutting the crop carrying it away, and the appellants must have
reasonably apprehended that they would cause death to them or at any rate inflict
injuries on them. This argument again has no support in the evidence. As we have
pointed out earlier, the intention of the deceased was peaceful and they were cutting
the crops under the protection of the police and none of the deceased was in
possession of any dangerous weapons. The sickles were used only by the labourers to
cut the crops. In the circumstances disclosed in the evidence we cannot hold that
there was any reasonable apprehension on the part of the appellants that they would
be killed or hurt by the deceased. The High Court was certainly right in holding that
the facts of the case did not attract the provisions of Section 103 of the Indian Penal
Code.
16. The same result will flow if we approach the question from a different stand
point. Section 103 of the Indian Penal Code is subject to Section 99 thereof. Under
Section 99, there is no right of private defence in cases in which there is time to have
recourse to the protection of public authorities, and the right of private defence in no
case extends to the inflicting of more harm that it is necessary to inflict for the
purpose of defence. Can it be said that in the present case the accused had no time to
have recourse to the protection of public authorities and they had not caused more
harm than was necessary to inflict for the purpose of private defence? The accused
knew beforehand that the deceased had gone to the field to cut the crop. The police
station is about two miles from the plot. They could have certainly gone to the police
station to inform the proper authority of the intentions of the deceased and asked for
police protection. They did not do so. When they came to the field they found two
police constables. They should have told them of the real situation, asked them to that
the deceased did not carry away the crop and should have sent one of their party to
the Sub-Inspector and made the necessary report. That reasonable attitude on the
part of appellants would have prevented the unfortunate events that had happened.
Instead, they tried to deploy the two constables on a false pretext and succeeded in
doing so in respect of one. Secondly, was it necessary for the accused, in the
42
.43
circumstances in which they were placed to use their guns immediately on coming to
the field to shoot to kill three of the complainant's party? The deceased had no arms,
whereas the appellants were fully armed with deadly weapons. The deceased were
cutting the crop under the protection of the police, indicating thereby their peaceful
intentions. Shooting at close range without warning would certainly be causing more
harm than was necessary, in the circumstances of the case, to inflict for the purpose of
private defence. In this view of the case also the appellants could not rely upon their
right of private defence. The argument of the learned counsel that the High Court
apportioned the shots fired on the deceased among the deceased without considering
the evidence does not call for any discussion, for in the view we held, it does not arise
for consideration. But, though the High Court in terms did not refer to the oral
evidence, there is evidence of PWs 2 and 6 to show who hit the deceased with what
weapon. It is no doubt true that their evidence was not accepted by the learned
Additional Sessions Judge, but the High Court stated in its judgment that the
prosecution had established, and it was not disputed by the accused, that each of the
appellant did a particular act attributed to him. Presumably because of the said
admission, the High Court did not expressly reconsider the evidence of these
witnesses in this regard. The finding, therefore, must be accepted.
17. Even so, learned counsel for the appellants contends that the offence would not
be murder but culpable homicide not amounting to murder. Reliance is placed on
Section 300 Exception 2, which reads:
“Culpable homicide is not murder if the offender, in the exercise in good faith of
the right of private defence of person or property, exceeds the power given to him
by law and causes the death of the person against whom he is exercising such right
of defence without premeditation, and without any intention of doing more harm
than is necessary for the purpose of such defence.”
18. On the facts found it cannot be said that the accused had shot at the deceased
without premeditation and without the intention of doing more harm than was
necessary for the purpose of private defence. We have already found that the accused
with the common intention of killing the deceased, shot at them from a close range
when the deceased were peacefully cutting the crop under the protection of the police.
There was both premeditation and intention to do more harm than was necessary
when the accused did the said acts. The circumstances of the present case do not
attract the provisions of the said exception.
19. Lastly, it is said that Gurdatta Mal and Madan Lal had only used the guns of
their close relatives, who had licences to keep them. Once it is accepted that the said
accused had no licence to have guns, their possession of the same would certainly
bring them under the provisions of Section 19(f) of the Arms Act.
20. In the result, the appeal fails and is dismissed.
———
*Appeals by Special Leave from the Judgment and Order dated 15th September, 1961 of the Allahabad High
Court in Government Appeal No. 248 of 1961 and Criminal Appeal No. 2030 of 1960
1 (1961) 3 SCR 120
2 AIR 1934 PC 227

3 AIR 1962 SC 439
43
TruePrint™ source: Supreme Court Cases, © 2022 Eastern Book Company. The text of this judgment is protected
by the law declared by the Supreme Court in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 paras 61, 62 &
63.
44
63.
45
63.
46
63.
47
63.
48
63.
49
63.
50
63.
51
63.
52
63.
53
63.
54
63.
55
63.
56
63.
57
63.
58
63.
59
63.
60
63.
61
63.
62
63.
63
63.
64
63.
65
63.
66
63.
67
63.
68
63.
69
63.
70
63.
71
63.
72
63.
73
63.
74
63.
75
63.
76
63.
77
63.
78
63.
79
63.
80
63.
81
63.
82
63.
83
63.
84
63.
85
63.
86
63.
87
63.
88
63.
89
63.
90
63.
91
63.
92
63.
93
63.
94
63.
95
63.
96
63.
97
63.
98
63.
99
63.
100
63.
101
63.
102
63.
103
63.
104
63.
105
63.
106
63.
107
63.
108
63.
109
63.
110
63.
111
63.
112
63.
113
63.
114
63.
115
63.
116
63.
117
63.
118
63.
119
63.
120
63.
121
63.
122
63.
123
63.
124
63.
125
63.
126
63.
127
63.
128
63.
129
63.
130
63.
131
63.
132
63.
133
63.
134
63.
135
63.
136
63.
137
63.
138
63.
139
63.
140
63.
141
63.
142
63.
143
63.
144
63.
145
Printed For: Pulkit Kumar, Delhi University Law School
SCC Online Web Edition: http://www.scconline.com

TruePrint™ source: ILR (Bombay), © 2022 EBC Publishing Pvt.Ltd., Lucknow.
146

147

148

149

150

151

152

153

154

155

156
.
157
.
158
159
160
.
161

Compendium - Prosecution

Uploaded by

Copyright:

Available Formats

Compendium - Prosecution

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Compendium - Prosecution

Uploaded by

Copyright:

Available Formats

THIRD NATIONAL CRIMINAL VIRTUALMOOT COURT COMPETITION,

Of the Cases Cited

On behalf of the Prosecution in the matter of

State ............................................................................................ Prosecutor

Rakesh Kumar & Ors ................................................................. Accused

2001 SCC OnLine Pat 968 : 2003 Cri LJ 392

Patna High Court

Satendra Kumar Singh Kushwaha … Appellant;

Atender Yadav v. State (Govt. of NCT of Delhi)

2013 SCC OnLine Del 4322

(BEFORE KAILASH GAMBHIR AND INDERMEET KAUR, JJ.)

Atender Yadav .…. Appellant

2. The case of the prosecution in the brief is that:

4. Addressing arguments on behalf of the appellant, Mr. K. Singhal, Advocate

conduct of the survivor continues to form an important part of a doctor's conclusion

9. Counsel also referred to Paras 10 and 11 of Chapter 11 of Justice Verma

1. State v. Rahul, reported in 2013 IV AD (Delhi) 745

2. Pappu v. State of Delhi, reported in 2010 (1) Cri.LJ 580 Delhi

3. Lillu @ Rajesh v. State of Haryana, reported in AIR 2013 SC 1784

4. State of Karnataka v. Shantappa Madivalappa Galapuji, reported in JT 2009 (5) SC

5. Virender v. State of NCT of Delhi, reported in 2010 III AD (DELHI) 342

6. Shaikh Sheru v. State of Maharashtra criminal appeal no. 406 of 2012.

i. Bhupinder Sharma v. State of Himachal Pradesh AIR 2003 SC 4684

ii. Gurudev v. The State (NCT of Delhi)

iii. State of Madhya Pradesh v. Santosh Kumar

vi. State of Karnataka v. Shantappa Madivalappa Galapuji, JT 2009 (5) SC 660

vii. Virender v. State of NCT of Delhi, 2010 III AD (DELHI) 342

x. Lillu @ Rajesh v. State of Haryana, reported in AIR 2013 SC 1784

xi. State v. Rahul, 2013 IV AD (Delhi) 745.

“Cases filed by appellant against Geeta Anand (PW4):

Cases filed by Ms. Geeta Anand (PW4) against appellant:

“The appellant married PW-4 on 29.07.1995. On 23.07.1996, Prosecutrix (PW-3) was

35. In State of Karnataka v. Shantappa Madivalappa Galapuji, reported in JT 2009 (5)

36. In Acharaparambath Pradeepan v. State of Kerala reported in (2006) 13 SCC 643,

“Pivotal submission of the appellant is regarding acceptability of PW-11's evidence.

Indisputably, certain factors are required to be considered as regards reliability of the

been discussed herein above.

to sexual assault”, it has been opined as under:-

77. In the matter of Tameezuddin @ Tammu v. State of (NCT) of Delhi reported in

78. It is true that barbarity of the offence of rape cannot be overemphasized,

AIR 1956 SC 731 : 1956 Cri LJ 1365

In the Supreme Court of India

CHIKKARANGE GOWDA AND OTHERS … Appellants;

conviction we are upholding.

1 20 Weekly Reporter (Criminal) 5

3 (1955) 1 SCR 1201

AIR 1965 SC 257 : (1965) 1 Cri LJ 242

In the Supreme Court of India

GURDATTA MAL AND OTHERS … Appellants;

1 (1961) 3 SCR 120

2 AIR 1934 PC 227

Printed For: Pulkit Kumar, Delhi University Law School

SCC Online Web Edition: http://www.scconline.com

Printed For: Pulkit Kumar, Delhi University Law School

SCC Online Web Edition: http://www.scconline.com

Printed For: Pulkit Kumar, Delhi University Law School

SCC Online Web Edition: http://www.scconline.com

Printed For: Pulkit Kumar, Delhi University Law School

SCC Online Web Edition: http://www.scconline.com

Printed For: Pulkit Kumar, Delhi University Law School