Gang rape: Acquittal: Delay in registering the complaint after three months due to shame in disclosing the incident even to her husband is not a natural conduct of a person

Appeal

Trial court convicted the appellants for GANG RAPE (kindly read the author’s note) and High Court upheld the conviction

1. The present Criminal Appeal has been preferred by the Appellants challenging the Judgment and order dated 28.09.2012 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No. 911 of 2001. The appellants had approached the High Court in appeal under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) challenging the Judgment and order dated 31.03.2000/03.04.2000 passed by the learned Additional Sessions Judge, Dehradun, in Sessions Trial No. 80 of 1999 wherein the appellants were convicted under Section 376(2)(G) and Section 506 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and were sentenced to undergo rigorous imprisonment for 10 years along with a fine of Rs. 5000/- along with 6 months rigorous imprisonment u/s 506 IPC, running concurrently. The High Court in appeal upheld the conviction awarded by the Trial Court.

Factual Matrix

Victim gang raped by appellants, FIR registered Trial conducted and convicted based on the version of sole witness (victim)

2. As per the prosecution story, on 31.07.1998, a written report was submitted by the victim to the Senior Superintendent of Police, Dehradun stating that on 07.04.1998 around 7:30pm while she was on her way back home from the market in Sanjay Colony, four people i.e. the appellants Rajendra, Pappu alias Hanuman, Sushil Kumar and Kishan met her. They closed her mouth and shut her eyes with a black handkerchief and raped her turn by turn after taking her to a nearby plot. After the alleged incident, she stated in the complaint, the accused kept threatening her because of which she could not file any complaint earlier. Based on this complaint, FIR/ Crime No. 315 of 1998 was registered at the P.S Dalanwala under Sections 376, 427 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) against all four accused. On receipt of the F.I.R., investigating agency was set in motion. After the completion of investigation, final report/charge sheet was submitted against accused persons for the charges under Sections 376(2)(g), 427, 506 IPC on 27.10.1999. All the four accused pleaded not guilty and claimed trial wherein after appreciating the oral and documentary evidence recorded, the Additional District Judge, Dehradun in S.T. No. 80 of 1999 vide judgement and order dated 31.03.2000 and 03.04.2000 convicted the accused under Section 376(2)(g) IPC and under Section 506 IPC, and sentenced each one of them to rigorous imprisonment for a period of 10 years, and to six months (concurrent sentences) and directed to pay a fine of Rs. 5000/- (and in default S.I. for 6 months). Aggrieved by the decision of the Trial Court, the appellants preferred Criminal Appeal No 911 of 2001 under Section 374 Cr.P.C before the Hon’ble High Court of Uttarakhand at Nainital wherein the High Court finding no merit in the appeal dismissed the same vide order dated 28.09.2012. In dismissing the appeal, the Hon’ble High Court observed that considering the nature of the crime and the manner in which it had been committed, there could have been no other witness except the victim herself and held that the statement given by the victim was trustworthy and nothing creates any reasonable doubt in it. The High Court further observed that the delay in registering the FIR was explained by the victim. The accused were known to her and thus she had no difficulty in identifying them.

Appellants 3 & 4 passed away

3. Aggrieved by the High Court order, Accused no. 1 and 2 have challenged the same before us. During the pendency of the present appeal, Accused no. 3 and 4 have passed away.

Submissions of the counsels

The appellants argued that the prosecution’s case was entirely unreliable, primarily highlighting an unexplained delay of over three months in filing the FIR, which they contended was inconsistent with natural human conduct. They pointed to material contradictions in the victim’s testimony, such as conflicting descriptions of the crime scene—alternating between a room and an open plot—and discrepancies regarding the distance from her home. Furthermore, the defense emphasized a history of prior enmity over a water dispute, suggesting the accusations were concocted for false implication. They also noted the lack of any independent witnesses or medical evidence to corroborate the sole testimony of the victim, despite the incident allegedly occurring in a densely populated area at a time when bystanders would likely have been present.

In contrast, the State maintained that the conviction was justified because the victim’s oral evidence sufficiently covered all legal ingredients of the offense. The prosecution argued that the delay in reporting was a natural reaction to the shame, fear, and threats imposed by the accused, who were known to the victim from the same village. They asserted that her testimony was trustworthy and that the High Court had correctly given weight to her emotional account during camera proceedings. The State’s position was that the presence of a room within the mentioned plot resolved the location inconsistencies and that no significant question of law remained to warrant overturning the lower court’s decision.

Analysis

Prosecution failed to establish its case

13. We have heard the learned counsel for the parties at length and with their assistance, we have also gone through the records of the case. We have also perused the evidence on record. On giving due consideration to the material on record, we find that the prosecution failed to establish its case against accused persons beyond reasonable doubt.

Delay in registering the complaint after three months due to shame in disclosing the incident even to her husband is not a natural conduct of a person

14. The complaint was submitted after three months of the occurrence of the alleged incident and in the meantime, as per the submissions, the prosecutrix did not disclose the incident to anybody, neither friends nor family and not even her husband out of shame and ignorance as mentioned in the complaint. This version of the prosecutrix is against a natural conduct of the person. It would have been natural for the prosecutrix to disclose the incident to her family members after some time and not to somebody who is unknown to her and as such it is very difficult to accept the version of the prosecutrix. The incident was only disclosed to a woman named Rahees Fatima after three months when the accused persons again allegedly threatened the prosecutrix that they will pick her up. The statement of Rahees Fatima was never recorded before the court even though in the statement of PW-2 I.O. it has been categorically stated that her statement was recorded at the house of the complainant along with the statements of the other two witnesses, Mohd. Salim and Smt. Chandra Sharma were also never produced before the court. We 10 find it hard to believe that such a grave incident was not disclosed by the complainant even to her husband at any point but was done so to a stranger woman who never deposed in front of the court. It is also to be observed that the whole case is based on the sole testimony of the prosecutrix and no other witnesses or evidence has been produced. We are also of the view that the defence of prior enmity between the parties has also not been properly considered by the courts below and complete weightage has been given to the testimony of the prosecutrix and her emotional outbursts. There also exists material inconsistencies in her statements that further weakens the case of the prosecution.

Conviction can rest on the solitary version of the prosecutrix if it inspires confidence

15. It is the trite in law that the conviction can rest on the solitary version of the prosecutrix, provided it inspires confidence of the Court. In the present case, the version of the prosecutrix utterly fails to inspire confidence of this Court.

Prosecutrix version does not inspire confidence

16. This court in the case of Vijayan vs. State of Kerala (2008) 14 SCC 763 dealt with similar facts to the extent that the entire case of the prosecutrix was based on her testimony and there was a delay of 7 months in lodging the FIR, and no other evidence was available on record. The court in the case held that-

“5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.”

17. It is safe to say that even in the case at hand, there is no medical evidence, or any other evidence on record to prove that the accused persons committed the grave act. The ratio in the case of Vijayan (supra) squarely covers the case at hand. We, therefore, do not find any reason whatsoever to hold that the appellants committed the heinous act. The material on record does not clearly establish the guilt of the accused person and the prosecution has not proved its case beyond reasonable doubt. We therefore allow the present appeal and set aside the judgment and order of the High Court.

18. In view of the above, present appeal is disposed of and the conviction of the appellants is thus set aside. The appellants to be released immediately if not convicted under any other offence.  

Resources

Judgments were involved or cited

• Criminal Appeal No. 911 of 2001 (High Court of Uttarakhand): The initial appellate judgment dated 28.09.2012, which had upheld the trial court’s conviction.
• Sessions Trial No. 80 of 1999 (Additional Sessions Judge, Dehradun): The original trial judgment dated 31.03.2000/03.04.2000, which convicted the appellants under Sections 376(2)(g) and 506 of the IPC.
• Vijayan vs. State of Kerala (2008) 14 SCC 763: A Supreme Court precedent cited to establish that it is “unsafe” and “hazardous” to convict an accused based solely on a victim’s testimony when there is a significant, inadequately explained delay in filing the FIR (seven months in that case) and a lack of corroborating medical evidence.

Acts and sections

Indian Penal Code (IPC), 1860

• Section 376(2)(g): Pertains to the offense of gang rape. The appellants were originally convicted and sentenced to 10 years of rigorous imprisonment under this section.
• Section 506: Relates to criminal intimidation. The appellants were sentenced to 6 months of rigorous imprisonment for this offense, to run concurrently with the rape sentence.
• Section 376: The general section for rape, under which the FIR was initially registered.
• Section 427: Relates to mischief causing damage to the amount of fifty rupees or upwards, which was included in the initial FIR and charge sheet.

Code of Criminal Procedure (Cr.P.C.), 1973

• Section 164: Concerns the recording of confessions and statements. The Court noted discrepancies between the victim’s statement recorded under this section and the details provided in the FIR.
• Section 374: Governs the appeals from convictions. The appellants used this section to challenge the Trial Court’s decision before the High Court.

Party

Rajendra & Ors. (Appellants) vs. State of Uttarakhand (Respondent) - Criminal Appeal No.(s) 264 of 2015, 2026 INSC 238 - - March 13, 2026 Hon'ble Mr. Justice Pankaj Mithal and Hon'ble Mr. Justice Prasanna B. Varale.

Author’s note

Introduction

Kindly note that when this incident happened there section 376(2)(g) IPC is noted for Gang rape. Explanation 1 to Section 376 (prior to the Amendment Act 2013) which reads as under: Explanation 1 to Section 376

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section’. [See: Thongam Tarun Singh … Appellant(S) versus The State of Manipur …Respondent(S) – Criminal Appeal No. 805 of 2019 – 30th April, 2019]

Section 376(2)(g) IPC (before 2013 amendment Act)

I have used the term “gang rape” in the paragraph heading, even though the Hon’ble Supreme Court has not used it. I intend to use this judgment to explain the timeline changes in the gang rape provision.

Kindly note that this incident occurred in 1998. At that time, the specific legal provision designated for this crime (gang rape) was Section 376(2)(g) of the Indian Penal Code (IPC).

Section 376-D IPC (after 2013 amendment Act)

The Criminal Law (Amendment) Act of 2013, which was enacted in response to the recommendations of the Justice J.S. Verma Committee, established “gang rape” as a separate offense under Section 376D. This amendment increased the mandatory minimum punishment for gang rape from 10 years to 20 years.

Section 70 BNS

The commitment to strict penalties has been reinforced by the newly enacted Bharatiya Nyaya Sanhita (BNS), specifically under Section 70. This section upholds the principle of joint liability and establishes severe punishments, including life imprisonment or the death penalty, for offenses involving minors.

Conclusion

Consequently, using the term “gang rape” remains legally accurate across the old IPC Section 376(2)(g), the post-2013 IPC Section 376D, and the current BNS Section 70.

Summarize

• Before 2013: Section 376(2)(g) was the specific provision for “gang rape”.
• After 2013 (Current IPC): “Gang rape” was moved to its own dedicated section, Section 376D.
• New Law (BNS): In the Bharatiya Nyaya Sanhita, gang rape is now under Section 70 (including girl under eighteen years old).

Thank you,

Ramprakash Rajagopal

Advocate, Tamilnadu.