IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. Appeal No. 4053 of 2013.

Reserved on : 31st May, 2017.

.

Date of Decision: 21st June, 2017.

Kapil Dev …..Appellant.
Versus

State of H.P. ….Respondent.

Coram
The Hon’ble
Judge.
r Mr.

Justice Sureshwar Thakur,

Whether approved for reporting? Yes.

For the Appellant: Ms. Anjali Soni Verma,
Advocate.

For the Respondent: Mr. Vivek Singh Attri, Deputy
Advocate General.

Sureshwar Thakur, Judge.

The instant appeal stands directed against

the judgment rendered on 12.07.2013 by the learned

Special Judge, Mandi, H.P. in Sessions trial

No.45/2009, whereby, the learned trial Court acquitted

the accused/appellant herein for his committing an

offence punishable under Section 3(xii) of the

Scheduled Castes and Scheduled Tribes (Prevention of

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Atrocities) Act, however, he convicted the accused

/appellant herein for his committing offences

punishable under Sections 376 and 366 of the IPC and

.

sentenced him as under:-

Sections Imprisonment imposed

376, IPC To undergo rigorous imprisonment for
seven years and to pay a fine of

Rs.30,000/- and in default of payment
of fine to undergo further
imprisonment for a period of one year.

366, IPC To undergo rigorous imprisonment for
two years and to pay fine of
Rs.20,000/- and in default of payment
of fine amount to undergo further
imprisonment for a period of one year.

All the sentences were ordered to run concurrently.

2. The facts relevant to decide the instant case

are that the prosecutrix belongs to schedule caste and

the accused met the prosecutrix while travelling in a

bus and requested the prosecutrix to give her

telephone number, to which the prosecutrix refused.

The accused had given his mobile number on a piece

of paper to the prosecutrix. On 27.08.2008, at about

7.30 a.m., the accused tried to contact the prosecutrix

on telephone number of her uncle, which phone was

attended by Rukamni Devi, the cousin sister of the

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prosecutrix and the accused had told said Rukmani

Devi that he was having some urgent work with the

prosecutrix and he wanted to talk her, at which the

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prosecutrix attended the call of the accused at about

7.30 a.m. The accused requested the prosecutrix to

come to Bali Chowki, at which the prosecutrix went to

Bali Chowki where the accused met her at about 12

O’clock in the noon. The accused expressed his

intention to marry the prosecutrix to which the

prosecutrix refused on the ground that she was

belonging to scheduled caste, but the accused

pretended to of her caste and insisted upon to marry

her on the same date and took the prosecutrix to Aut,

where during the night he committed rape upon the

prosecutrix twice and thrice on the pretext of marrying

her. However, on the next date the accused disclosed

that he was already married and he was having wife

and children and he told the prosecutrix to go to her

parental aunt’s house as he has to arrange money and

the accused assured the prosecutrix to take her with

him after bringing the money. Consequently, she went

to her aunt’s house at Shamsi. Mani Ram, the father

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of the prosecutrix, on finding that the prosecutrix has

not returned to her house on 27.08.2008, carried out

search for her, but could not succeed and on

.

29.8.2008 he came to know that the prosecutrix was

in the house of his sister at Shamsi, at which he along

with his wife and daughter Indira went to the house of

his sister at Shamsi, where the prosecutrix met them.

The prosecutrix kept on waiting for the accused till

29.08.2008, but the accused did not turn and on

29.08.2008, the prosecutrix made a telephone call to

the accused and asked him to marry her, at which the

accused disclosed that he would get her married with

some suitable boy. The prosecutrix thereafter

disclosed about occurrence to her father Mani Ram

and they kept on waiting for the accused, but the

accused did not turn up. Thereafter, the prosecutrix

alongwith her father approached Tek Singh, the then

Pradhan Gram Panchayat, Devdhar and told him that

the prosecutrix was enticed away by the accused on

the pretext of marrying her and the accused

committed sexual intercourse with the prosecutrix on

such pretext. Tek Singh, thereafter also talked with

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the accused and tried to settle the matter, but the

accused expressed his inability to solemnise the

marriage with the prosecutrix, at which the

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prosecutrix was advised by said Tek Singh to report

the matter with the police. On 30.08.2008, the

prosecutrix along with her parents went to Police Post

Bali Chowki from where they were taken to Police

Station, Aut, where FIR Ex.PW1/A was lodged by the

prosecutrix. Thereafter police completed all the codel

formalities.

3. On conclusion of investigation(s), into the

offence, allegedly committed by the accused, a report

under Section 173 of the Code of Criminal Procedure

was prepared and filed before the competent Court.

4. The accused stood charged by the learned

trial Court for his committing offences punishable

under Section 3(xii) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act and

under Sections 376 and 366 of the IPC. In proof of the

prosecution case, the prosecution examined 14

witnesses. On conclusion of recording of the

prosecution evidence, the statement of the accused

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under Section 313 of the Code of Criminal Procedure

was recorded by the learned trial Court in which the

accused claimed innocence and pleaded false

.

implication in the case.

5. On an appraisal of the evidence on record,

the learned trial Court, recorded findings of conviction

against the accused/appellant herein.

6. The appellant/convict stands aggrieved by

the judgment of conviction recorded against him by

the learned trial Court. The learned counsel appearing

for the appellant/convict has concertedly and

vigorously contended qua the findings of conviction

recorded by the learned trial Court standing not based

on a proper appreciation of the evidence on record,

rather, theirs standing sequelled by gross mis-

appreciation of the material on record. Hence, she

contends qua the findings of conviction warranting

reversal by this Court in the exercise of its appellate

jurisdiction and theirs standing replaced by findings of

acquittal.

7. On the other hand, the learned Deputy

Advocate General has with considerable force and

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vigour, contended qua the findings of conviction

recorded by the learned trial Court standing based on

a mature and balanced appreciation by it of the

.

evidence on record and theirs not necessitating any

interference, rather theirs meriting vindication.

8. This Court with the able assistance of the

learned counsel on either side, has, with studied care

and incision, evaluated the entire evidence on record.

9. The prosecutrix is a major, hence, was

empowered to purvey a valid consent to the accused

for his holding her to coitus. However, the sexual

encounter which occurred inter se the accused and

the prosecutrix, is alleged to stand aroused by the

accused making an allurement of marrying her. The

testification, of the prosecutrix in respect of the

accused obtaining her consent for subjecting her to

sexual intercourse under a pretext or an allurement of

marrying her, as comprised, in her examination-in-

chief when remains unshred of its efficacy “during”

the ordeal of an exacting cross-examination to which

she stood subjected to by the learned defence

counsel, thereupon it is rendered both creditworthy

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besides inspiring. Even though, in the testification of

the prosecutrix, occurring in her cross-examination,

she has made visible disclosures with respect to hers

.

having a love affair with the accused, nonetheless, it

will be unbefitting to therefrom conclude that the

relevant sexual encounter which occurred inter se

both, hence not emanating under a pretext of or an

allurement of marriage meted to her by the accused.

Also the testification of the prosecution, is supported

by her father Mani Ram, who deposed as PW-2

besides, is supported by Tek Chand, PW-13, to whom

the incident was initially reported both by the

prosecutrix and her father. Moreover, with echoings

occurring in Ex.PW4/C, proven by Dr. Yamini (PW-4),

with respect to the factum of the prosecutrix being

exposed to sexual intercourse “does” constrain this

Court to return findings of conviction upon the

accused.

10. Be that as it may, dehors the aforesaid

inspiring testimonies existing on record in depiction of

the charge being hence proven, this Court is yet

enjoined to not remain oblivious qua the factum of

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their occurring a delay in lodging of the FIR,

whereupon, the testifications of the aforesaid

prosecution witnesses also the testification of PW-4

.

may stand eroded. The relevant incident occurred on

27.08.2008, whereas, the FIR borne on Ex.PW1/A,

stood lodged on 30.08.2008. However, the delay in

the lodging of the FIR has remained unexplained. The

omission of the prosecutrix to explain the delay in the

lodging of the FIR, “does” constrain an inference that

the version(s) testified by the prosecution witnesses

concerned qua the relevant penal misdemeanor,

losing their respective vigour. Aggravated momentum

to the aforesaid blemish imbuing the prosecution case’

is acquired by the testification of PW-2, who in his

testification articulated that the whereabouts of his

daughter were unknown upto 29.08.2008, whereat,

the prosecutrix was located at the house of her aunt

at Samshi. PW-2 testifies that on 29.08.2008, he had

located the prosecutrix at the house of his sister, at

Samshi, upon his visiting the homestead of his sister

while his being accompanied by his wife and his

daughter. However, both the wife of PW-2 and his

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daughter, who accompanied him to the house of his

sister at Samshi “stood” never examined by the

prosecution, whereas, they constituted the best

.

evidence in respect of the prosecutrix being located,

on 28.08.2008, by PW-2 at latter’s sister’s house at

Samshi. The effect of suppression of the aforesaid

best evidence, in support of the aforesaid fact, is that

it casts a grave spell of doubt upon the factum of the

prosecutrix r”since” 27.08.2008 upto 29.08.2008

residing at her aunt’s house at Samshi, “more so”,

when the sister of PW-2, at whose house the

prosecutrix stayed from 27.08.2008 upto 29.08.2008

also remained unexamined. The further effect of

suppression of the aforesaid evidence, dehors the

factum of PW-3 deposing that both, the accused and

the prosecutrix stayed in his guest house on

27.08.2008, is that thereafter also the accused and

the prosecutrix stayed together elsewhere. The

erection of the aforesaid inference has the further

concomitant effect, of the prosecutrix prevaricating

the factum of hers under the pretext of marriage

being subjected to a singular sexual encounter “at

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Aut” by the accused. Corollary whereof, is that it is to

be construed that she meted a valid consent to the

accused, for the latter repeatedly holding to sexual

.

intercourses.

11. In aftermath, when the accused subjected

the prosecutrix to repeated sexual intercourses,

thereupon, the prosecutrix, who is a major also when

she is not demonstrated to be not fit to purvey a valid

consent to r the accused for the latter sexually

accessing her, renders hers holding repeated sexual

engagements with the accused, to be bereft of any

stain or element of theirs standing engendered by any

pretext or allurement of marriage purportedly meted

to her by the accused. Conspicuously, with the

accused while holding her to an initial sexual

encounter under a purported pretext of marrying her,

his refusing to marry her, hence, his resiling from his

promise, “constituted” a sufficient reason for the

prosecutrix to refuse to thereafter mete consent to the

accused to subject her to further sexual intercourses.

Contrarily, with the prosecutrix repeatedly permitting

the accused to sexually access her “when” construed

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in conjunction with the delay in the lodging of the FIR,

hence, unfolds the graphic evident fact of the

accused in holding the prosecutrix to repeated sexual

.

intercourses being bereft of any stain of any pretext or

allurement of marriage purveyed by one to the other

rather it appears that the prosecutrix consensually

bereft of any allurement “engaging” in repeated

sexual intercourses with the accused, whereupon the

charge stands belied.

12. For the reasons which have been recorded

hereinabove, this Court holds that the learned trial

Court has not appraised the entire evidence on record

in a wholesome and harmonious manner apart

therefrom the analysis of the material on record by

the learned trial Court suffers from a gross perversity

or absurdity of mis-appreciation and non appreciation

of evidence on record.

13. Consequently, the instant appeal is allowed

and the impugned judgment rendered by the learned

trial Court in Sessions Trial No. 45/2009 on 12.07.2013

is set aside. The accused/appellant is ordered to be

released from judicial custody forthwith, if, he is not

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required in any other process of law. Fine amount, if

any, deposited by the accused/appellant be refunded

to him. Records be sent back forthwith.

.

(Sureshwar Thakur)
21 st
June, 2017. Judge.

(jai)

r to

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