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Judgments of Supreme Court of India and High Courts

State Of H.P vs Guman Singh on 4 January, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Cr. Appeal No. 477 of 2009
Reserved on: 29.12.2017.

Decided on : 04.01.2018.

.

_

State of H.P. …..Appellant

Versus

Guman Singh ….Respondent

Coram:

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?1 No

For the appellant: Mr. J.S. Guleria, Assistant,

Advocate General.

.

For the respondents: Ms. Anita Dogra and Mr. Anil
Kumar Manget, Advocates.

Tarlok Singh Chauhan, Judge:

By medium of this appeal, the State has assailed the

judgment dated 4.5.2009 passed by the learned Additional

Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions

Trial No. 9-N/7 of 2008, whereby the respondent has been

acquitted of the offences punishable under Sections 363, 366

and 376 of the Indian Penal Code.

1

Whether reporters of the local papers may be allowed to see the judgment? yes

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2. The story of the prosecution has been correctly

.

reproduced by the learned trial court, therefore, the same is

extracted as it is from the impugned judgment.

3. The brief facts of the case are that on 12.2.2008, the

prosecutrix (PW-4) alongwith Vinta Devi (PW-2) were present in

their house situated at Village Manal, whereas Bansi Ram (PW-1)

father of the prosecutrix alongwith his wife had gone to Village

Jarwa. The prosecutrix at about 4.00 p.m. went to her field in

order to bring grass and at that time the respondent came there

and told the prosecutrix that he would get her employed in a

factory and would also arrange a good boy for her marriage and

asked the prosecutrix to accompany him, at which the

prosecutrix told the respondent that she had to inform her

parents, but the prosecutrix was taken away forcibly by the

respondent to Meenus through a forest and on the way Guman

Singh (PW-3) met both of them and thereafter the prosecutrix

was taken to Vikas Nagar by the respondent and from there to

village falling in Haryana where the respondent had taken a

quarter on rent. The prosecutrix stayed with the respondent in

his quarter and on the night of 14.2.2008 the respondent

committed forcible sexual intercourse with the prosecutrix after

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catching hold of her both arms and the prosecutrix though

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raised cries but no one came to rescue her.

4. It has come in evidence that on the next day the

respondent told the prosecutrix to send her back to her village

and took the prosecutrix to Indri and in the meantime when the

prosecutrix did not return to her house on 12.2.2008 then on

the next day Vinta Devi (PW-2) the sister-in-law of the

prosecutrix narrated the occurrence to Bansi Ram (PW-1) the

father of the prosecutrix when he returned to his house.

Thereafter, search was conducted for the prosecutrix by Bansi

Ram (PW-1) in the village as well as in his relations, but to no

avail and therefore he reported the matter to the police on

14.2.2008. Bansi Ram (PW-1) came to know from Guman Singh

(PW-3) that the prosecutrix alongwith the respondent was seen

going towards Nainidhar and on 16.2.2008 when ASI Parveen

Rana (PW-16) the then Investigating Officer, Police Station,

Shillai reached at village Rohnat alongwith other police officials

in the search of the prosecutrix then Bansi Ram (PW-1) got

recorded his statement Ext.PW-1/A which was forwarded to

Police Station through Constable Ramesh, on the basis of which

FIR Ext.PW-14/A came to be recorded at Police Station, Shillai

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by SI Jeet Singh (PW-14) the then SHO, P.S. Shillai. On coming

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to know that the prosecutrix was seen with the respondent, the

police officials went to the house of the respondent and came to

know on inquiry from the father of the respondent that the

respondent had left for his job at Indri and thereafter ASI

Parveen Rana (PW-16) alongwith Bansi Ram (PW-1), Jeet Singh

(PW-6) and Sher Singh went to Indri and at the bus stand, Indri,

the prosecutrix and the respondent were found standing there.

The father of the prosecutrix identified her on the basis of which

site map Ext.PW-16/B was prepared.

5. The further case of the prosecution is that the

prosecutrix was handed over to Bansi Ram (PW-1) vide memo

Ext.PW-1/B and her medical examination was conducted by Dr.

Meenakshi (PW-5), Medical Officer, Civil Hospital, Shillai on

17.2.2008 and as per her opinion there was nothing suggestive

that sexual intercourse had not been performed regarding which

MLC Ext.PW-5/B was issued by her. The Medical Officer also

preserved the clothes of the prosecutrix comprising salwar Ext.

P-1 and underwear Ext.P-2 and she also prepared vaginal smear

slides and took sample of pubic hair of the prosecutrix and

handed over the same to the police for chemical examination.

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The prosecutrix was referred to Regional Hospital, Nahan for

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radiological opinion for age estimation and as per opinion of

radiologist, the age of the prosecutrix was found between 16 to

18½ years.

6. It has also come in the prosecution evidence that the

respondent was arrested and his medical examination was

conducted and as per MLC Ext.PA he was found capable to

perform sexual intercourse. Pubic hair of the respondent were

preserved alongwith his underwear by the Medical Officer and

were handed over to the police for chemical examination and as

per report of Dr. Gian Thakur (PW-7) the then Scientific Officer,

FSL, Junga Ext.PW-7/A, human semen was detected on the

salwar, underwear and vaginal smear slides of the prosecutrix

and the underwear of the respondent, whereas human blood was

found on the vaginal swab of the prosecutrix. The certificate

regarding date of birth of the prosecutrix Ext.PW-12/A was

obtained from Vijay Thakur (PW-12) the then Incharge of the

School Manal Mahal, Tehsil Shillai and copy of the Pariwar

Register Ext.PW-13/A pertaining to the date of birth of the

prosecutrix was also obtained from Partap Singh (PW-13), the

then Panchayat Assistant in Gram Panchayat, Lojja Manal,

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according to which the date of birth of the prosecutrix was

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found to be 7.11.1990. The statements of the witnesses were

recorded by ASI Biru Ahmed (PW-15) and ASI Parveen Rana

(PW-16) as per their version.

7. On conclusion of the investigation on the basis of the

material collected during the investigation, the Officer Incharge

of the Police Station, Shillai submitted a charge-sheet against

the accused for committing offences punishable under Sections

363, 366 and 376 IPC in the court of learned Judicial Magistrate

1st Class, Court No.2, Paonta Sahib, District Sirmaur, who vide

order dated 2.8.2008 committed the case to the Court of learned

Sessions Judge, Sirmaur District at Nahan.

8. On consideration, a charge under Sections 363, 366

and 376 IPC was framed against the respondent to which he

pleaded not guilty and claimed trial. The prosecution examined

as many as 16 witnesses in support of its case.

9. The statement of the respondent under Section 313

Cr.P.C. was recorded in which he denied the prosecution case

and claimed that he is innocent and has been falsely implicated

in this case as the prosecutrix of her own accompanied him to

Haryana and he being from different caste a false case has been

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registered against him. No evidence in defence was adduced by

.

the respondent.

10. The learned trial Court on the basis of the evidence

so led, acquitted the respondent of the offences punishable

under Sections 363, 366 and 376 of the Indian Penal Code vide

judgment dated 4.5.2009 constraining the State to file the

instant appeal.

11. Mr. J. S. Guleria, learned Assistant Advocate General

for the appellant-State has vehemently argued that the findings

returned by the learned trial court are perverse, inasmuch he

has erred in discarding the statements of PW-1 and PW-2

without appreciating the same and in case the learned Court

below could have considered the same in their right perspective,

then there was no chance of the respondent being acquitted.

12. On the other hand, learned counsel for the

respondent have supported the judgment of acquittal on the

ground that the same has been passed after taking into

consideration the entire facts as also appreciating the law on the

subject.

We have heard the learned counsel for the parties

and have gone through the record of the case carefully.

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13. It is now well settled principle of law that conviction

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can be founded on the sole testimony of the prosecutrix, unless

there are compelling reasons for seeking corroboration. It is also

equally settled that corroboration as a condition for judicial

reliance on the testimony of the prosecutrix is not a requirement

of law but a guidance of prudence under the given

circumstances. (Refer State of Punjab Vs. Gurmit Singh

(1996) 2 SCC 384, State of Himachal Pradesh Vs. Asha Ram

AIR 2006 SC 381, Rajinder Vs. State of Himachal Pradesh,

(2009) 16 SCC 69.) However, it has to be borne in mind that a

case of sexual assault has to be proved beyond reasonable doubt

as any other case and there is no presumption that the

prosecutrix would always tell the entire story truthfully.

14. In Rajoo Vs. State of Madhya Pradesh (2008) 15

SCC 133, the Hon’ble Supreme Court held that the testimony of

a victim of rape has to be treated as if she is an injured witness

but cannot be presumed to be a gospel truth. It was held that:-

“9. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a prosecutrix should not be suspect
and should be believed, the more so as her statement has to be
evaluated at par with that of an injured witness and if the
evidence is reliable, no corroboration is necessary. Undoubtedly,
the aforesaid observations must carry the greatest weight and
we respectfully agree with them, but at the same time they

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cannot be universally and mechanically applied to the facts of
every case of sexual assault which comes before the Court. It

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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. It must, further, be borne in mind that
the broad principle is that an injured witness was present at the

time when the incident happened and that ordinarily such a
witness would not tell a lie as to the actual assailants, but there
is no presumption or any basis for assuming that the statement
of such a witness is always correct or without any

embellishment or exaggeration. Reference has been made in

Gurmit Singh’s case to the amendments in 1983 to Sections 375
and 376 of the India Penal Code making the penal provisions
relating to rape more stringent, and also to Section 114A of the

Evidence Act with respect to a presumption to be raised with
regard to allegations of consensual sex in a case of alleged rape.
It is however significant that Sections 113A and 113B too were

inserted in the Evidence Act by the same amendment by which
certain presumptions in cases of abetment of suicide and dowry

death have been raised against the accused. These two
Sections, thus, raise a clear presumption in favour of the
prosecution but no similar presumption with respect to rape is

visualized as the presumption under Section 114A is extremely
restricted in its applicability. This clearly shows that in so far as
allegations of rape are concerned, the evidence of a prosecutrix
must be examined as that of an injured witness whose presence
at the spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel
truth. Additionally her statement can, at best, be adjudged on
the principle that ordinarily no injured witness would tell a lie or

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implicate a person falsely. We believe that it is under these
principles that this case, and others such as this one, need to be

.

examined.”

15. In Tameezuddin @ Tammu Vs. State (NCT of

Delhi), (2009) 15 SCC 566, it was held as under:-

“7. 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. …..”

16. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC

323, the Hon’ble Supreme Court held as under:-

“10. Mr. C.D. Singh has however placed reliance on Moti Lal’s

case (supra) to contend that the evidence of the prosecutrix was
liable to be believed save in exceptional circumstances. There
can be no quarrel with this proposition (and it has been so

emphasised by this Court time and again) but to hold that a

prosecutrix must be believed irrespective of the improbabilities in
her story, is an argument that can never be accepted. The test
always is as to whether the given story prima facie inspires

confidence. We are of the opinion that the present matter is
indeed an exceptional one.”

17. In Abbas Ahmad Choudhary Vs. State of Assam,

2010 (12) SCC 115, the Hon’ble Supreme Court observed that:-

“5. We are however, of the opinion that the involvement of
Abbas Ahmad Choudhary seems to be uncertain. It must first be
borne in mind that in hery statement recorded on 17th

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September, 1997, the prosecutrix had not attributed any rape to
Abbas Ahmad Choudhary. Likewise, she had stated that he was

.

not one of those who kidnapped her and taken to Jalalpur Tea

Estate and on the other hand she categorically stated that while
she along with Mizazul Haq and Ranju Das were returning to the

village that he had joined them somewhere along the way but
had still not committed rape on her. It is true that in her
statement in court she has attributed rape to Abbas Ahmad
Choudhary as well, but in the light of the aforesaid

contradictions some doubt is created with regard to his
involvement. Some corroboration of rape could have been found if
Abbas Ahmad Choudhary too had been apprehended and taken
to the police station by P.W. 5 -Ranjit Dutta the Constable. The

Constable, however, made a statement which was corroborated

by the Investigating Officer that only two of the appellants Ranju
Das and Md. Mizalul Haq along with the prosecutrix had been
brought to the police station as Abbas Ahmad Choudhary had

run away while en route to the police station. Resultantly, an
inference can be rightly drawn that Abbas Ahmad Choudhary
was perhaps not in the car when the complainant and two of the

appellants had been apprehended by Constable Ranjit Dutta.
We are, therefore, of the opinion that the involvement of Abbas

Ahmad Choudhary is doubtful. We are conscious of the fact that
in a matter of rape, the statement of the prosecutrix must be
given primary consideration, but, at the same time, the broad

principle that the prosecution has to prove its case beyond
reasonable doubt applies equally to a case of rape and there can
be no presumption that a prosecutrix would always tell the
entire story truthfully.”

18. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi

(2012( 8 SCC 21, the Hon’ble Supreme Court commented about the

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quality of the sole testimony of the prosecutrix, which would be made

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basis to convict the accused and it was held:-

“15. In our considered opinion, the sterling witness should be of
a very high quality and caliber whose version should, therefore,

be unassailable. The Court considering the version of such
witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be

relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
of the statement right from the starting point till the end, namely,
at the time when the witness makes the initial statement and

ultimately before the Court. It should be natural and consistent

with the case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness. The
witness should be in a position to withstand the cross-
examination of any length and howsoever strenuous it may be

and under no circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as,

the sequence of it. Such a version should have correlation with
each and everyone of other supporting such as the recoveries

made, the weapons used, the manner of offence committed, the
scientific evidence and the expert opinion. The said version
should consistently match with the version of every other

witness. It can even be stated that it should be akin to the test
applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well
as all other similar such tests to be applied, it can be held that
such a witness can be called as a sterling witness whose
version can be accepted by the Court without any corroboration
and based on which the guilty can be punished. To be more

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precise, the version of the said witness on the core spectrum of
the crime should remain intact while all other attendant

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materials, namely, oral, documentary and material objects

should match the said version in material particulars in order to
enable the Court trying the offence to rely on the core version to

sieve the other supporting materials for holding the offender
guilty of the charge alleged.”

19. In State of Madhya Pradesh vs. Munna alias

Shambhoo Nath (2016) 1 SCC 696, the Hon’ble Supreme Court

held that consensual sex by a girl, who is more than 16 years of

age, cannot be termed to be rape.

20. Now, reverting back to the facts, it would be noticed

that it is neither the case of the prosecution that the prosecutrix

was below 16 years of age at the relevant date and time nor is

there any evidence led by the prosecution to this effect.

21. On the other hand, while appearing as PW-4

prosecutrix has stated her age to be 18 years and claimed to be

17 years on the date of the alleged incident. To similar effect is

the statement of the father of the prosecutrix Bansi Ram, who

appeared as PW-1 and stated that the prosecutrix was aged

about 19 years in the year 2008 when the incident took place.

Not only this, the prosecution has examined Vijay Thakur,

PW-12, Incharge of School Manal Mahal, Tehsil Shillai to prove

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the date of birth certificate of the prosecutrix Ext.PW-12/A and

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Partap Singh, PW-13, Panchayat Sahayak in Gram Panchayat,

Lojja Manal to prove the copy of family register Ext.PW-13/A in

which the date of birth of the prosecutrix has been recorded. A

perusal of both these documents would reveal that the date of

birth of the prosecutrix is 7.11.1990 which means that at the

time of alleged incident i.e. February, 2008, the prosecutrix was

17 years of age. Thus, it stands fully established on record that

the age of the prosecutrix at the time of alleged incident was 17

years.

22. Why this Court has been compelled to discuss at the

threshold the age of the prosecutrix is the fact that the learned

trial Court has come to a categoric conclusion that the

intercourse between the prosecutrix and the respondent was

consensual and it is in this background that we are mandated to

determine the age. For it is more than settled that in case the

age of the prosecutrix would have been below 16 years, then her

consent to such sexual act, would be immaterial.

23. Having determined the age, we now proceed with the

version of the prosecution as contained in FIR Ext.PW-14/A

which was recorded on the basis of the statement Ext.PW-1/A of

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Bansi Ram, PW-1, father of the prosecutrix. It is alleged that on

.

11.2.2008 he (Bansi Ram) alongwith his wife had gone to village

Jarwa to the house of his relation and on 13.2.2008 when he

returned back then he was told by his daughter-in-law Vinta

Devi that on 12.2.2008 in the evening the prosecutrix had gone

to her ‘Ghasni’ to cut the grass and thereafter had not returned

to the house. Bansi Ram alongwith his family members carried

out the frantic search of the prosecutrix in the village as also in

the houses of their relatives but the prosecutrix was not to be

found. Thereafter, report regarding missing of the prosecutrix

was lodged in Police Station. However, on 16.2.2008 Guman

Singh, PW-3, told Bansi Ram that on 12.2.2008 in the evening

he had seen the prosecutrix accompanying the respondent

through a path in the forest, thereby expressing suspicion that

the prosecutrix may have been enticed away or allured by the

respondent. He thereafter reported the matter to the police. It is

then that the police searched for the respondent initially at

village Gholadhar and since he was not available, they proceeded

towards Haryana from where the prosecutrix was recovered and

brought back to Shillai and handed over to her father vide memo

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Ext.PW-1/B. He further stated that it was the respondent, who

.

might have kidnapped the prosecutrix.

24. From the statement of PW-1 as discussed above, it

would be evidently clear that in the presence of PW-1 the

prosecutrix was not taken away by the respondent nor had he

seen the prosecutrix go away with the respondent. It was only on

the basis of the information given by Guman Singh (PW-3) that

the respondent may have kidnapped the prosecutrix.

25. In the cross-examination, this witness (PW-1) has

clearly stated that he had lodged the report with the police only

on the information given to him by Guman Singh (PW-3). He

further stated that he did not remember what was told to him by

the prosecutrix when she was handed over to him and he also

did not get recorded the version of the prosecutrix which was

told to him by her in the Police Station. This clearly means that

there is nothing in the statement of this witness to even remotely

infer that on inquiry the prosecutrix had told him that she had

been kidnapped by the respondent at the relevant date and time

or that the respondent had committed rape upon her. Therefore,

the mere fact that this witness was told by Guman Singh (PW-3)

that the prosecutrix was seen going with the respondent through

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the forest towards Ronhat does not in any manner established

.

that it is the respondent, who had kidnapped or abducted the

prosecutrix and thereafter committed rape upon her.

26. At this stage, we may note that it is not disputed even

by the respondent that the prosecutrix was recovered by the

police at Indri where he was present alongwith the prosecutrix. It

is also not disputed by the respondent that the prosecutrix has

gone with him from the fields to the area of Haryana where he

was employed in the Factory and the prosecutrix stayed with

him there for two days and during this period he had committed

sexual intercourse with her as is clearly evident from the

statement of respondent recorded under Section 313 Cr.P.C. In

reply to question No.2, the respondent has admitted that the

prosecutrix met him in the Ghasni on 12.2.2008 at about 4.00

p.m. whereas in reply to question No.5, he has stated that the

prosecutrix accompanied him at her own and on the way Guman

Singh (PW-3) also met them. It is also admitted by him that the

prosecutrix was taken to Vikas Nagar by him and from there to a

village falling in the State of Haryana where he had taken a

residential quarter on rent. However, the categoric version

put-forth by the respondent is that the prosecutrix had of her

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own volition and free will accompanied him to Haryana and

.

lateron he had been falsely implicated as they belong from

different caste.

27. Bearing in mind the aforesaid background, we now

proceed to consider the testimony of Guman Singh, who

appeared as PW-3 and stated that at about 6.00 p.m. at the

relevant date when he was returning to his house he had seen

the prosecutrix and the respondent going through the forest

towards Nainidhar and had in fact given information to PW-1

Bansi Ram accordingly.

28. Noticeably, this fact is not even disputed by the

prosecutrix while appearing as PW-4 when she states that she

had gone with the respondent from Ghasni through the forest

towards Meenus and from there accompanied the respondent to

Vikas Nagar and then to a village falling in Haryana where she

stayed with the respondent in a residential quarter on

13.2.2008 and 14.2.2008 and on the next day when they were

present at Indri then the police came there alongwith her father

from where both of them were brought to Police Station, Shillai.

29. Jeet Singh, PW-6 has proved on record the recovery

memo Ext.PW-1/B whereby the prosecutrix was taken into

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custody at Indri in Haryana. This testimony is duly corroborated

.

by PW-16 ASI Parveen Rana and this fact is not otherwise in

dispute in the instant case.

30. The only question that requires consideration is

whether the prosecution has been able to prove its case with

regard to the offence alleged to have been committed by the

respondent i.e. kidnapping and rape. We may once again

reiterate that it is not at all disputed that the prosecutrix was in

fact subjected to sexual intercourse. However, the question

remains whether it was consensual or was forcible so as to

constitute rape.

31. The prosecutrix while appearing as PW-4 has stated

that she was subjected to sexual intercourse by the respondent

on 14.2.2008 and has further asserted that such sexual

intercourse was committed forcibly by the respondent without

her consent and despite her resistance as the respondent had

caught hold of her both arms. She also stated that she had

raised hue and cry, but none came to her rescue. However, the

statement of the prosecutrix cannot be taken at its face value

and has to be taken pinch of salt because it has come on record

that the prosecutrix out of her free will and volition had

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accompanied the respondent to various places and had even

.

stayed with him. In case the prosecutrix had been kidnapped or

subjected to rape, then why she had not raised any hue and cry.

32. No doubt, the prosecution did try to establish before

the learned trial Court that the prosecutrix had been taken away

by the respondent after alluring or enticing her as had been

reported vide Ext.PW-1/A by Bansi Ram (PW-1). However, such

version was not supported by Bansi Ram when he appearing as

PW-1. He nowhere in his statement has deposed that the

prosecutrix was taken away by the respondent at the relevant

date and time from his lawful guardianship by giving any

allurement to her.

33. Now adverting to the testimony of PW-4. She in her

statement has stated that on 12.2.2008 at about 4.00 p.m. she

had gone to the fields to bring grass and when she was cutting

the grass the respondent came there and told her that he would

get her employed in a factory and would also arrange for a good

boy for her marriage and the respondent asked her to

accompany him. But then the prosecutrix has stated that she

told the respondent that she had to inform her parents, but the

respondent took her away forcibly. Thus, the statement of the

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prosecutrix unequivocally suggests that even though the

.

respondent had asked her to accompany her by alluring her that

he would get her employed in the factory and would arrange a

suitable match for her, but the prosecutrix did not accompany

the respondent in pursuance of such allurement. On the other

hand, it is her statement that when the respondent gave such

allurement, she informed the respondent that she had to inform

her parents, but the respondent had thereafter taken her

forcibly. Adverting to the cross-examination, it would be noticed

that the prosecutrix stated that the respondent forcibly picked

her up and took her away through the forest and thereafter she

went with the respondent which further establishes that the

prosecutrix had not accompanied the respondent in pursuance

to the allurement as aforesaid.

34. Thus, on the basis of the statement of the

prosecutrix, it is nowhere established that the respondent had

taken away the prosecutrix from her field by giving any

allurement or enticing her in any manner. Noticeably, there is no

evidence on record which may establish that the respondent had

allured the prosecutrix.

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35. Now, in case the prosecutrix had been forcibly taken

.

by the respondent as is alleged by the prosecutrix, then it is also

her admitted case that they met PW-3 Guman Singh on the way,

then why the prosecutrix did not raise any hue and cry on seeing

Guman Singh (PW-3) or narrated the incident to him because

PW-3 Guman Singh is none other than the nephew of the

prosecutrix. That apart, it has come in the statement of the

prosecutrix that during the night at village Meenus she

alongwith the respondent stayed in rainshelter. However, when

cross-examined, the prosecutrix had admitted that there are

many houses and shops in Meenus and she did not seek the

help of any inhabitant of the locality while staying there.

36. The prosecutrix further stated that from Meenus they

went to Vikas Nagar and then to a village in Haryana in a bus.

While being cross-examined, she did not narrate the incident to

any of the passengers or to the driver or conductor of the bus.

The prosecutrix has further stated that she stayed with the

respondent in his quarter at Haryana and the respondent left the

quarter in the morning saying that he would arrange a job for

her in the factory and also look for a good boy for her marriage

and the respondent thereafter returned only in the evening.

05/01/2018 23:02:56 :::HCHP

…23…

37. Adverting further to the statement of the prosecutrix,

.

it would be noticed that she has stated that during the night of

13.2.2008 she stayed in the quarter of the respondent and on

the night of 14.2.2008 the respondent committed rape upon her

despite her raising cries and protest. Admittedly, the prosecutrix

was recovered from the bus stand at Indri alongwith the

respondent on 17.2.2008. Thus, the evidence on record clearly

indicates that the prosecutrix even though had got ample

opportunities at different places either while moving on the road

or in the bus or while staying in the residential quarter of the

respondent to complain against the respondent and to protest

against his activities, but nowhere she had made any complaint

or protest. She of her own volition and out of free will

accompanied the respondent without any hitch, which only

indicates that the prosecutrix was acting freely as per her

discretion and there was no compulsion or force on her to move

one place to another.

38. At this stage, it would be necessary for us to make

note of medical examination of the prosecutrix that was

conducted on 17.2.2008, which clearly establishes that no

marks of violence and no injury on any part of the body of the

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…24…

prosecutrix including her genital area were found, which

.

otherwise belies the version of the prosecutrix regarding her

being subjected to forcible sexual intercourse when she stayed

with the respondent from 13.2.2008 to 17.2.2008.

39. We find the version putforth by the prosecutrix to be

highly improbable and difficult to accept on its face value. Having

found it difficult to believe such testimony on its face value, though

we searched for support from other material also, but found

complete lack of corroboration of material particulars and,

therefore, the testimony of the prosecutrix being not worthy of any

credence is totally unreliable. In case the prosecutrix had been

subjected to rape multiple times, we really see no reason why she

should not have raised an alarm (as has been observed above).

In view of the aforesaid discussion, the respondent

cannot be held guilty of an offence punishable under Section 376

IPC.

40. Undoubtedly, the prosecutrix being only 17 years of

age at the relevant time was minor so far as the other offence of

kidnapping is concerned, but as observed above, the prosecution

has miserably failed to prove on record that the prosecutrix had

been enticed by the respondent to accompany him at different

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…25…

places. We have already concluded that the prosecutrix was a

.

consenting party.

41. On the basis of the aforesaid discussion, it can

conveniently be held that the charges levelled against the

respondent have not at all been proved.

42. We are here dealing with an appeal against acquittal

and legal position with regard to interference in such matters is

well settled in Mookkiah and another vs. State, represented

by Inspector of Police, Tamilnadu, 2013 (2) SCC 89, wherein

the Hon’ble Supreme observed as under:-

“9. It is not in dispute that the trial Court, on appreciation of
oral and documentary evidence led in by the prosecution and

defence, acquitted the accused in respect of the charges leveled
against them. On appeal by the State, the High Court, by
impugned order, reversed the said decision and convicted the

accused under Section 302 read with Section 34 of IPC and

awarded RI for life. Since counsel for the appellants very much
emphasized that the High Court has exceeded its jurisdiction in
upsetting the order of acquittal into conviction, let us analyze the

scope and power of the High Court in an appeal filed against the
order of acquittal

10. This Court in a series of decisions has repeatedly laid down
that
“3…… as the first appellate court the High Court, even
while dealing with an appeal against acquittal, was also
entitled, and obliged as well, to scan through and if need
be re- appreciate the entire evidence, though while
choosing to interfere only the court should find an

05/01/2018 23:02:56 :::HCHP
…26…

absolute assurance of the guilt on the basis of the
evidence on record and not merely because the High

.

Court could take one more possible or a different view

only. Except the above, where the matter of the extent and
depth of consideration of the appeal is concerned, no

distinctions or differences in approach are envisaged in
dealing with an appeal as such merely because one was
against conviction or the other against an acquittal.
[Vide State of Rajasthan vs. Sohan Lal and Others, 2004

5 SCC 573]

11. In State of Madhya Pradesh vs. Ramesh and
Another, 2011 4 SCC 786, this Court, while considering the

scope and interference in appeal against acquittal held:

“15. We are fully alive of the fact that we are dealing with
an appeal against acquittal and in the absence of
perversity in the said judgment and order, interference by

this Court exercising its extraordinary jurisdiction, is not
warranted. It is settled proposition of law that the
appellate court being the final court of fact is fully

competent to reappreciate, reconsider and review the
evidence and take its own decision. Law does not

prescribe any limitation, restriction or condition on
exercise of such power and the appellate court is free to
arrive at its own conclusion keeping in mind that acquittal

provides for presumption in favour of the accused. The
presumption of innocence is available to the person and in
criminal jurisprudence every person is presumed to be
innocent unless he is proved guilty by the competent court
and there can be no quarrel to the said legal proposition
that if two reasonable views are possible on the basis of
the evidence on record, the appellate court should not
disturb the findings of acquittal.”

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…27…

12. In Minal Das and Others vs. State of Tripura, 2011 9
SCC 479, while reiterating the very same position, one of us, P.

.

Sathasivam, J. held:

“14. There is no limitation on the part of the appellate
court to review the evidence upon which the order of

acquittal is found and to come to its own conclusion. The
appellate court can also review the conclusion arrived at
by the trial court with respect to both facts and law. While
dealing with the appeal against acquittal preferred by the

State, it is the duty of the appellate court to marshal the
entire evidence on record and only by giving cogent and
adequate reasons set aside the judgment of acquittal. An
order of acquittal is to be interfered with only when there
r are “compelling and substantial reasons” for doing so. If

the order is “clearly unreasonable”, it is a compelling
reason for interference. When the trial court has ignored
the evidence or misread the material evidence or has

ignored material documents like dying declaration/report
of ballistic experts, etc. the appellate court is competent to
reverse the decision of the trial court depending on the

materials placed.”

13. In Rohtash vs. State of Haryana, 2012 6 SCC 589,

this Court held:

“27. The High Court interfered with the order of acquittal
recorded by the trial court. The law of interfering with the

judgment of acquittal is well settled. It is to the effect that
only in exceptional cases where there are compelling
circumstances and the judgment in appeal is found to be
perverse, the appellate court can interfere with the order
of the acquittal. The appellate court should bear in mind
the presumption of innocence of the accused and further
that the trial court’s acquittal bolsters the presumption of
innocence. Interference in a routine manner where the

05/01/2018 23:02:56 :::HCHP
…28…

other view is possible should be avoided, unless there are
good reasons for interference. (Vide State of Rajasthan v.

.

Talevar, 2011 11 SCC 666 and Govindaraju v. State,

2012 4 SCC 722)”

14. In a recent decision in Murugesan Ors. vs. State

Through Inspector of Police, 2012 10 SCC 383, one of us
Ranjan Gogoi, J. elaborately considered the broad principles of
law governing the power of the High Court under Section 378 of
the Code of Criminal Procedure while hearing the appeal against

an order of acquittal passed by the trial Judge. After adverting to
the principles of law laid down in Sheo Swarup vs. King
Emperor, 1934 AIR(PC) 227 (2) and series of subsequent
pronouncements in para 21 summarized various principles as

found in para 42 of Chandrappa Ors. vs. State of

Karnataka, 2007 4 SCC 415 as under:

“21. A concise statement of the law on the issue that had
emerged after over half a century of evolution since Sheo

Swarup1 is to be found in para 42 of the Report in
Chandrappa v. State of Karnataka. The same may,
therefore, be usefully noticed below: (SCC p. 432)

“42. From the above decisions, in our considered view, the
following general principles regarding powers of the

appellate court while dealing with an appeal against an
order of acquittal emerge:

(1) An appellate court has full power to review,

reappreciate and reconsider the evidence upon which the
order of acquittal is founded.

(2) 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 conclusion, both on questions of fact
and of law.

05/01/2018 23:02:56 :::HCHP

…29…

(3) 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 emphasise 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.

(4) 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
r 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.

[pic](5) 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.”

(emphasis in original)

43. Thus, what can be taken to be settled is that the

appellate court should not ordinarily set-aside a judgment of

acquittal and should concentrate to consider the entire evidence

on record, so as to arrive at a finding as to whether the views of

the trial court were perverse or otherwise unsustainable. The

05/01/2018 23:02:56 :::HCHP
…30…

appellate court is entitled to consider whether in arriving at a

.

finding of fact, the trial court has failed to take into

consideration admissible evidence and/or has taken into

consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject

matter of scrutiny by the appellate court.

44. In exceptional cases, where there are compelling

circumstances and the judgment under appeal is found to be

perverse, the appellate court can interfere with the order of

acquittal. However, the appellate court should bear in mind the

presumption of innocence of the accused and further that the

trial court’s acquittal bolsters the presumption of his innocence.

Interference in a routine manner, where the other view is

possible should be avoided, unless there are good reasons for

interference. The findings of fact recorded by a court can be held

to be perverse if the findings have been arrived at by ignoring or

excluding relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said to

be perverse if it is “against the weight of evidence”, or if the

finding so outrageously defies logic as to suffer from the vice of

05/01/2018 23:02:56 :::HCHP
…31…

irrationality. This however is not the fact situation obtaining in

.

this case.

45. In view of the aforesaid discussion, we are of the

considered view that the prosecution has miserably failed to

prove its case. After going through the record of case, we find no

reason to take a different view than the one taken by the learned

trial court and even otherwise, in absence of any material to the

contrary, the prosecution has failed to persuade us to take a

different view. The findings recorded by the learned trial Court

are based on correct appreciation of the facts and the law and do

not warrant any interference. There are no compelling

circumstances which may call for interference as the reasons

given by the learned Court below are cogent and convincing; and

based on records of the case.

46. For the forging reasons, the appeal lacks merit and is

accordingly dismissed. Pending application(s), if any, also stands

dismissed. Bail bonds are discharged.

(Tarlok Singh Chauhan)
Judge

(Chander Bhusan Barowalia)
Judge
04.01.2018
(GR)

05/01/2018 23:02:56 :::HCHP

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