sc judgement - perjury conviction of a girl resiling from her rape statement upheld

                                           REPORTABLE

             IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NOS.           OF 2008
   (CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)



Mahila Vinod Kumar        i                           .....

Petitioner

                              Versus

State of Madhya Pradesh                          .....Respondent

                       JUDGMENT

Dr. ARIJIT PASAYAT, J.



1.   Heard learned counsel for the petitioner.



2.   Delay condoned.



3.   Though, we are not inclined to entertain the special leave

petitions, but we find that there is a need for expressing views

on action to be taken for maliciously setting law into motion.
4.   The petitioner lodged a report against two persons at

Pichhore Police Station to the effect that on 28.1.1993

between 6.00 to 7.00 a.m. she was waylaid by them who

dragged her and committed rape on her, one after another.

She claimed to have narrated the incident to her father and

uncle and, thereafter lodged the report at the police station.

On the basis of the report, matter was investigated.        The

accused persons were arrested. Charge-sheet was filed. The

accused persons faced trial for alleged commission of offence

punishable under Section 376(2)(g) of the Indian Penal Code,

1860 (in short `the IPC'). The accused persons abjured their

guilt. During trial, the petitioner stated that she had actually

not been raped.    As she resiled from the statement made

during investigation, she was permitted to be cross-examined

by the prosecution. She even denied to have lodged the first

information report (Exh.P-1) and to have given any statement

to the police (Exh.P-2). In view of the statement of the

petitioner, the two accused persons were acquitted by

judgment dated 28.11.2001. The Trial Court found that the

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petitioner had tendered false evidence and had fabricated

evidence against the accused persons with the intention that

such evidence shall be used in the proceedings, and,

therefore, directed cognizance in terms of Section 344 of the

Code of Criminal Procedure, 1973 (in short `the Code') to be

taken against the petitioner. A show-cause notice was issued

and the case was registered against the petitioner who filed

reply to the effect that being an illiterate lady, she had

committed the mistake and may be excused. The Trial Court

found that the petitioner admitted her guilt that she had

lodged false report of rape against the accused.   She was,

accordingly, sentenced to undergo three months' simple

imprisonment. Aggrieved by the order, the petitioner filed an

appeal before the Madhya Pradesh High Court, which, by the

impugned order, was dismissed.



5.   Stand before the High Court was that being an illiterate

lady, she does not understand law and the particulars of the

offence were not explained to her and, therefore, the appeal

should be allowed. This was opposed by the State on the


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ground that the petitioner had admitted her guilt before the

Trial Court and, therefore, the conviction is well founded. The

High Court perused the records of the Trial Court and found

that in the show-cause reply she had admitted that she had

told lies all through. The stand that the particulars of the

offence were not explained to her, was found to be equally

untenable, because in the show-cause notice issued, relevant

details were given.   In the first information report, and the

statement recorded by the police, she had clearly stated that

she was raped by the accused persons. But in Court she

denied to have stated so. Learned counsel for the petitioner

submitted   that   the   Court    imposed   15   days'   simple

imprisonment which is harsh. But that is not the end of the

matter. The petitioner filed an application before the High

Court stating that a wrong statement was made before the

High Court that she had already suffered custody for 15 days,

which weighed with the High Court to reduce the sentence.



6.   Learned counsel for the petitioner stated that being a girl

of tender age, she was pressurized by her mother and uncle to


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give a false report.   This is at variance with the statement

made in court during trial to the effect that she had not

reported anything to the police. It is a settled position in law

that so far as sexual offences are concerned, sanctity is

attached to the statement of a victim. This Court, has, in

several cases, held that the evidence of the prosecutrix alone

is sufficient for the purpose of conviction if it is found to be

reliable, cogent and credible. In the present case, on the basis

of the allegations made by the petitioner, two persons were

arrested and had to face trial and suffered the ignominy of

being involved in a serious offence like rape. Their acquittal,

may, to a certain extent, have washed away the stigma, but

that is not enough.    The purpose of enacting Section 344,

Cr.P.C. corresponding to Section 479-A of the Code of

Criminal Procedure, 1898 (hereinafter referred to as `the Old

Code') appears to be further arm the Court with a weapon to

deal with more flagrant cases and not to take away the

weapon already in its possession. The object of the legislature

underlying enactment of the provision is that the evil of

perjury and fabrication of evidence has to be eradicated and

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can be better achieved now as it is open to the courts to take

recourse to Section 340(1) (corresponding to Section 476 of

the Old Code) in cases in which they are failed to take action

under Section 344 Cr.P.C.



7.    This   section   introduces     an   additional   alternative

procedure to punish perjury by the very Court before which it

is committed in place of old Section 479 A which did not have

the desired effect to eradicate the evils of perjury. The salient

features of this new provision are:

(1)   Special powers have been conferred on two specified

      Courts, namely Court of Session and Magistrate of the

      First Class, to take cognizance of an offence of perjury

      committed by a witness in a proceeding before it instead

      of filing a complaint before a Magistrate and try and

      punish the offender by following the procedure of

      summary trials. For summary trial, see Ch. 21.




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(2)   This power is to be exercised after having the matter

      considered by the Court only at the time of delivery of the

      judgment or final order.

(3)   The offender shall be given a reasonable opportunity of

      showing cause before he is punished.

(4)   The maximum sentence that may be imposed is 3

      month's imprisonment or a fine up to Rs.500 or both.

(5)   The order of the Court is appealable (vide S. 351).

(6)   The procedure in this section is an alternative to one

      under Sections 340-343. The Court has been given an

      option to proceed to punish summarily under this

      section or to resort to ordinary procedure by way of

      complaint under Section 340 so that, as for instance,

      where the Court is of opinion that perjury committed is

      likely to raise complicated questions or deserves more

      severe punishment than that permitted under this

      section or the case is otherwise of such a nature or for

      some reasons considered to be such that the case should

      be disposed of under the ordinary procedure which




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      would be more appropriate, the Court may chose to do so

      [vide sub-section (3)].

(7)   Further proceedings of any trial initiated under this

      section shall be stayed and thus, any sentence imposed

      shall also not be executed until the disposal of an appeal

      or revision against the judgment or order in the main

      proceedings in which the witness gave perjured evidence

      or fabricated false evidence [vide sub-section (4)].




8.    For exercising the powers under the section the Court at

the time of delivery of judgment or final order must at the first

instance express an opinion to the effect that the witness

before it has either intentionally given false evidence or

fabricated such evidence. The second condition is that the

Court must come to the conclusion that in the interests of

justice the witness concerned should be punished summarily

by it for the offence which appears to have been committed by

the   witness.   And    the     third   condition   is   that   before

commencing the summary trial for punishment the witness



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must be given reasonable opportunity of showing cause why

he should not be so punished. All these conditions arc

mandatory. [See Narayanswamy v. State of Muharashtra,

(1971) 2 SCC 182].



9.    The object of the provision is to deal with the evil perjury

in a summary way.



10.   The evil of perjury has assumed alarming propositions in

cases depending on oral evidence and in order to deal with the

menace effectively it is desirable for the courts to use the

provision more effectively and frequently than it is presently

done.



11.   In the case at hand, the court has rightly taken action

and we find nothing infirm in the order of the Trial Court and

the High Court to warrant interference. The special leave

petitions are, accordingly dismissed.




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                     ................................J.
                     (Dr. ARIJIT PASAYAT)



                     ................................J.
                     (P. SATHASIVAM)
New Delhi:
July 11, 2008




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