REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1248  OF 2008

Ram Singh @ Chhaju                                               ………….. Appellant

Versus

State of Himachal Pradesh                                        …………..Respondent

J U D G M E N T

H.L. Dattu, J.

1)           This appeal, by the accused, arises out of the judgment of  

High Court of Himachal Pradesh in Criminal Appeal No. 142 of  

1994 dated 20.3.2008, whereby the appellant is convicted for the  

offence of rape punishable under Section 376 of Indian Penal Code  

by reversing the judgment of Additional Sessions Judge, Kangra  

Division in Sessions Case No. 9 of 1992 dated 2.8.1993.  The High  

Court has come to the conclusion that the prosecution has brought  

home the charge under Section 376 of I.P.C. and has sentenced the  

appellant to suffer rigorous imprisonment for ten years and to pay  

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a  fine  of  Rs.5000/-,  in  default  of  payment  of  fine  to  undergo  

rigorous  imprisonment  for  a  further  period  of  one  year.   The  

accused feeling aggrieved sought special leave to appeal,  on the  

same being granted, this appeal is before us.   

2)           Co-accused  Naresh  Singh alias  Titta  died  during  the  

pendency of appeal before the High Court.

3)           We shall state the facts of the case as put forth by the  

prosecution:- Smt. Chanchala Devi, hereinafter referred to as the  

“victim”,  is the resident of village Dhabian and, was midwife by  

profession.  Shri Chattar Singh is the husband of Smt. Chanchala  

Devi.  Shri Ashok Kumar (PW-7) is her son.  The accused are the  

residents of village Guriyal, which is situated at a distance of about  

2 Kms from village Dhabian.   Smt. Chanchala Devi – Victim was  

present  in her  house on August 13,  1989.  She had gone to bed  

along with her husband after taking her meal on that day.  Her son  

Ashok  Kumar  (PW-7)  aged  about  24  years  was  present  in  the  

house and was sleeping in the courtyard of the house.  That night  

i.e.  on  the  night  of  12/13th August,  1989,  PW-7  Ashok Kumar  

woke  up  his  mother  Chanchala  Devi  and  told  her  that  Naresh  

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Singh alias Titta (dead) has come to call her as his Bhabi, who was  

not named by him, has been having labour pains in village Guriyal.  

The victim went out of the room and saw Naresh Singh alias Titta  

sitting on the cot of her son in the verandah of the house.  The case  

of the prosecution is that, though the victim refused to the request  

made by Naresh Singh alias Titta stating that it was not convenient  

for  her  as  she  was  having  tooth  ache,  however,  after  being  

persuaded by Naresh Singh alias Titta and also by her son PW-7  

Ashok Kumar, the victim agreed to accompany Naresh Singh alias  

Titta  to  his  house  situated  at  village  Guriyal.   When  they  had  

covered a distance of about 30 yards from the house of victim, the  

appellant  Ram  Singh  alias  Chhaju  also  met  them.  They  all  

continued walking towards the house of Naresh Singh alias Titta.  

When they had reached a place known as Tapukar, Naresh Singh  

alias Titta caught hold of the victim and the appellant Ram Singh  

alias Chhaju laid her on the ground and opened her trousers. The  

victim tried to raise alarm, but the Naresh Singh alias Titta dealt a  

fist  blow on  her  mouth  and  then  gagged it.   Both  the  accused  

performed  sexual  intercourse  forcibly  with  the  victim  and  

thereafter  sneaked away from the place.   After  returning home,  

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victim had narrated the whole incident to her husband and son. The  

son of the victim PW-7 Ashok Kumar brought PW-4 Niaz Deen,  

the Pradhan of the Panchayat on the same night. He was apprised  

of the incident by the husband of the victim.  On his advice, on the  

following day i.e. on 14.8.1989, the victim being accompanied by  

her husband reported the matter at police station Nurpur, where her  

statement was recorded on the basis of which the first information  

report  was  registered  on  14.8.1989.  She  was  got  medically  

examined at about 12.15 P.M. on the same day. The doctors had  

opined that victim had been subjected to sexual intercourse 12 to  

14 hours prior to her medical examination.  The accused were also  

got  medically examined by Dr.  Anil  Mahajan (PW-3),  who had  

opined that  there  was  nothing suggesting that  the  accused were  

incapable of performing sexual intercourse.  On completion of the  

investigation,  the  final  report  was  filed  in  the  court  of  Sub-

Divisional  Magistrate,  Nurpur.  The  case  was  committed  by  the  

learned  Magistrate  to  the  Additional  Sessions  Court,  Kangra  

Division at Dharmashala (Himachal Pradesh) on 6.5.1992, and the  

same was numbered as Sessions Case No. 9 of  1992.  Charges  

were  framed under  Section 376 read with  Section 34 of  Indian  

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Penal  Code  and put  up  for  trial  before  the  Additional  Sessions  

Judge, Nurpur.  

4)            The accused persons pleaded not guilty to the charge.  Their  

defence was that they have been falsely implicated by the victim  

on account of animosity.   

5)           In support of its case, the prosecution examined the victim  

Smt. Chanchala Devi (PW1) who has supported the prosecution  

version in all its material particulars.  Niaz Deen (PW-4) was also  

examined as a  witness  of  fact,  but  he was  declared hostile  and  

cross examined by State counsel.   Dr.  S.  Mahajan,  (PW-2) was  

examined to prove the medical examination report of the victim.  

Dr.  Anil  Mahajan  (PW-3)  was  examined  to  prove  the  medical  

examination report of the accused.  Sardar Balwant Singh, (PW-5)  

was examined to prove the statement of the accused made before  

the Station House Officer, but, he was declared hostile and cross  

examined by the State counsel.  Ashok Kumar, (PW-7), son of the  

victim was examined to corroborate the statement of the victim.   

6)           The trial court has found that the prosecution has not been  

able to prove that the accused persons had sexual intercourse with  

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the victim.  Accordingly, has acquitted the appellant herein of the  

crime.   

7)           The State of Himachal Pradesh had carried the matter by  

filing Criminal Appeal No. 142 of 1994 under Section 378 of the  

Code of Criminal Procedure before the High Court of Himachal  

Pradesh against the decision of the trial court.  The High Court has  

allowed the appeal vide its judgment dated 20.3.2008, by setting  

aside the judgment and order of the trial court and after hearing the  

accused while deciding on the quantum of sentence, has convicted  

the  accused  under  Section  376  of  the  I.P.C.  and  sentenced  to  

undergo rigorous imprisonment for ten years and to pay a fine of  

Rs.  5,000/-,  in  default  of  payment  of  fine  to  undergo  rigorous  

imprisonment for a period of one year which has given rise to this  

appeal.  

8)           While assailing the judgment of the High Court, the learned  

counsel  for  the  appellant  has  contended  that  the  finding  of  

conviction of the High Court is unreasonable and not justified on  

the material on record.  It is not proved by reliable and independent  

evidence that the incident alleged had taken place.  It is also not  

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proved from the medical evidence that rape had been committed by  

the appellant and the co-accused and there is no corroboration of  

the evidence of the victim by any independent evidence and the  

testimony of  the  victim is  not  reliable  and trustworthy  and  the  

conviction on the sole testimony of the victim is not justified.

9)           Learned counsel for the appellant has laid great stress on the  

proposition that the testimony of the victim required corroboration  

and as no independent corroboration was available, the trial court  

rightly  had passed  an order  of  acquittal  which  should not  have  

been upset by the High Court in an appeal filed by the State.  

10)        The High Court in its judgment has stated that the trial court  

has  erred  in  appreciating  the  testimony  of  the  witnesses  to  the  

extent the victim has nowhere mentioned in her statement that the  

appellant Naresh Singh alias Titta (dead) had taken any particular  

name when he had requested her to accompany him to facilitate the  

delivery  of  his  Bhabhi.  The  High Court  has  also  observed that  

there is no contradiction in the testimony of victim and her son  

PW-7  Ashok  Kumar  as  both  have  testified  that  there  was  

reluctance  shown by victim to  accompany  the  appellant  Naresh  

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Singh alias Titta (dead) at around 12.00 a.m. at night, to facilitate  

the delivery of his Bhabhi. The High Court has also observed that  

the Trial Judge was not justified in coming to the conclusion that  

Ashok Kumar (PW-7) could not have heard the narration of the  

incident by the victim to her husband since he was sleeping in the  

court yard.  The High Court has also noticed that the observation  

of  Additional  Sessions  Judge  that  the  victim  did  not  name the  

culprits while narrating the incident to PW-4 Niaz Deen Pradhan of  

village Dhabian contradicts the prosecution case, cannot be held to  

be correct as the husband of victim in her presence had already told  

that she was raped by the appellants. Therefore, it is not reasonable  

to expect from the victim who was under shock due to the incident,  

to narrate the same to PW-4 Niaz Deen Pradhan in presence her  

husband and son.  

11)           The High Court has also found it difficult to accept the  

reasoning  of  the  Trial  Court  about  the  fact  that  there  were  no  

injuries on the person of the victim belied her testimony that she  

was subjected to forcible sexual intercourse. The High Court has  

observed that the victim was suffering from toothache because of  

which she was unable to firmly resist, and further she could not  

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raise  alarm  since  her  mouth  had  been  gagged  by  the  accused  

persons.  The Court has also observed that though the blow with  

the fist was given on her mouth by the appellant, it may not have  

caused any serious injury.  However,  being an old lady of  more  

than 40 years at the relevant time and the appellants being young  

men both around 20 years, the victim could not have been put up a  

strong  defence.   The  High  Court  has  also  pointed  towards  the  

finding that the spot where the victim was raped, shown in the spot  

inspection  map  Ext.PK  and  which  has  been  proved  by  the  

Investigation Officer PW-11 Govardhan Dass,  shows that  at  the  

site of incident, grass and plants of some crop were found damaged  

and ruffled. The High Court is also not convinced with the trial  

court’s observation that the victim at the late hours of the night  

should have been accompanied either by her husband or her son.  

The  High Court  observes  that  there  was  nothing  unusual  about  

victim going alone with the appellants as it is normal practice to go  

with male members to facilitate the deliveries as the midwives are  

respected like mothers. Therefore, there was no reason for herself  

or her husband and son to disbelieve the appellant and deny the  

request of appellant in that situation. The entire conspectus of the  

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case was viewed by the High Court in vivid detail to come to the  

conclusion that the appellant was guilty of the crime.  

12)           It was submitted before us by the learned counsel for the  

appellant  that  there  was  no  injury  on  the  person  of  the  victim.  

According to him, if there was sexual assault on the victim, she  

would have resisted the offender  and in that  process  she would  

have  received  some injuries  on other  parts  of  the  body.   Much  

importance  cannot  be  given  to  the  absence  of  defence  injuries,  

because  it  is  not  inevitable  rule  that  in  the  absence  of  defence  

injuries the prosecution must necessarily fail to establish its case.  

In the first information report and also in the evidence of PW-1, it  

has come on record that she could not cry out for help since her  

mouth  was  gagged  by  the  accused.   It  has  also  come  in  the  

evidence that the victim was aged about 40 years and the accused  

persons were young and aged about 20 years and, therefore, she  

was not in a position of equal strength so as to resist the appellants.  

Even in the absence of any injuries on the person of the victim, in  

our view, with the other evidence on record, the prosecution is able  

to establish that the offence was committed.  

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13)           It was contended by the learned counsel for the appellant  

that the blood stained clothes which were said to have been handed  

over to the Officer-in-Charge at the Police Station by the husband  

of  the  victim  were  not  sent  for  chemical  examination  and,  

therefore, the corroboration with which such evidence could offer  

was absent.  In our view, the failure of the investigating agency  

cannot be a ground to discredit the testimony of the victim.  The  

victim  had  no  control  over  the  investigating  agency  and  the  

negligence, if any, of the investigating officer could not affect the  

credibility of the statement of PW-1 – the victim.  Having regard to  

the facts and circumstances of this case, we are satisfied that on the  

basis of the evidence on record, the conviction of the appellant can  

be sustained.  

14)           It is also submitted that in the absence of any injury on the  

private parts of the victim, the High Court should have disbelieved  

the  prosecution  story.  In  our  view,  it  is  difficult  to  accept  the  

submission of the learned counsel.  The reason being the doctor  

who has been examined as PW-2 has found that the victim PW-1  

was used to sexual intercourse and as such absence of injury on the  

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private parts of the victim may not be very significant.   PW-1 was  

also used to sexual intercourse.  The evidence of the victim has  

been corroborated by the evidence of PWs.2 and 3, the two post  

occurrence  witnesses,  as  well  as  by  the  FIR which  was lodged  

without  any  delay.   Therefore,  it  is  difficult  to  differ  from the  

findings of the High Court.  

15)           In the present case, the testimony of the victim inspires  

confidence.   Her  testimony  is  not  only  corroborated  by  other  

witnesses but also by the medical evidence.  Even if the statement  

of  Niaz  Deen,  PW-4  is  not  taken  into  consideration,  the  other  

corroborative  evidence  in  the  case  is  sufficient  to  connect  the  

accused with the  crime.

16)           Before we conclude, out of sheer deference to learned  

counsel for the appellant, we intend to notice the feeble submission  

made by the learned counsel for the appellant.  It is contended by  

the learned counsel that the findings and the conclusion reached by  

the  Sessions Court  is  one of  the possible view in  the  facts  and  

circumstances of the case and therefore, the High Court ought not  

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to have taken a different view and passed an order of conviction  

against  the  appellant.   In  aid  of  this  submission,  the  learned  

counsel has invited our attention to the observations made by this  

Court in the case of Perla Somasekhara Reddy and Ors. Vs. State  

of  A.P.  (  2009)  7  SCALE  115.   In  our  considered  view,  the  

submission of the learned counsel has no merit.  This Court in the  

aforesaid case by way of universal application has not stated, that,  

whenever  there  is  a  judgment  and  order  of  acquittal  by  the  

Sessions  Court,  the  High  Court  under  no  circumstances  would  

interfere with the said order even when it comes to the conclusion  

that the findings and conclusion reached by the trial court is based  

on mere conjecture and hypothesis and not on the legal evidence.  

In fact, in the aforesaid decision this Court has taken note of what  

has been stated by this Court in the case of Chandrappa and Ors.  

Vs. State of Karnataka (2007) Crl.L.J. 2136, wherein apart from  

others, it is stated, that the appellate court has full power to review,  

re-appreciate and reconsider the evidence upon which the order of  

acquittal is founded;  the Code of Criminal Procedure, 1973 puts  

no limitation, restriction or condition on exercise of such power  

and an appellate court on the evidence before it may reach its own  

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conclusion,  both  on  questions  of  fact  and  of  law;  various  

expressions, such as, “substantial and compelling reasons”, “good  

and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  

conclusions”,  “glaring mistakes”,  etc.  are not intended to curtail  

extensive  powers  of  an  appellate  court  in  an  appeal  against  

acquittal.  Such phraseologies are more in the nature of “flourishes  

of language” to emphasis the reluctance of an appellate court to  

interfere with acquittal  than to curtail  the power of the court  to  

review  the  evidence  and  to  come  to  its  own  conclusion;  an  

appellate  court,  however,  must  bear  in  mind  that  in  case  of  

acquittal,  there  is  double  presumption in  favour of  the  accused.  

Firstly, the presumption of innocence is available to him under the  

fundamental principle of criminal jurisprudence that every person  

shall be presumed to be innocent unless he is proved guilty by a  

competent court of law.   Secondly, the accused having secured his  

acquittal,  the presumption of his innocence is further reinforced,  

reaffirmed  and  strengthened  by  the  trial  court;  and  if  two  

reasonable conclusions are possible on the basis of the evidence on  

record,  the  appellate  court  should  not  disturb  the  finding  of  

acquittal recorded by the trial court.

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17)          In the present case, the High Court on re-appreciation of  

evidence on record has differed with the findings of the Sessions  

Court on the innocence of the accused and has found him guilty of  

the charges leveled against him.  The High Court after evaluating  

the manner in which the evidence and other materials on record  

has been appreciated as well as the conclusions arrived at by the  

Sessions Court, has come to the conclusion that the findings of the  

Sessions  Court  are  perverse  and  has  resulted  in  miscarriage  of  

justice has re-appreciated the evidence and materials on record and  

has  found  that  the  appellant  is  guilty  of  the  offence  alleged.  

Therefore, in our view, the decision on which reliance has been  

placed by learned counsel for the appellant would not assist him in  

any manner whatsoever.

18)           The result of the aforesaid discussion leads to only one  

conclusion that the accused committed forcible rape on the victim  

on the intervening night of 12/13th August, 1989, as alleged by her,  

and his conviction by the High Court is quite justified being based  

on evidence on record.  It is, therefore, confirmed.

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19)           We, therefore, find no merit in this appeal and the appeal is,  

accordingly, dismissed.   

…………………………………J.                                                                                     [ P. SATHASIVAM ]

…………………………………J.  [ H.L. DATTU ]

New Delhi, January 28, 2010

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