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Rakesh Kumar Shah vs State Of Uttarakhand on 14 February, 2018

Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 186 of 2013
With
Criminal Jail Appeal No. 05 of 2017

Reserved on : 05.01.2018
Delivered on : 14.02.2018
—————————————————————
Rakesh Kumar Shah …Appellant
Versus

State of Uttarakhand …Respondent
————————————————————————

Mr. Pooran Singh Rawat and Mr. Bhuwan Chand Bhatt,
Amicus Curiae for the appellant
Mr. Sachin Panwar, Brief Holder for the State

Hon’ble Sharad Kumar Sharma, J.

 Both appeals under Section 374 of

Criminal Procedure Code.

 Arising out of judgment dated

19.03.2013, convicting appellant.

 Passed by 1st Additional Sessions Judge,

Rishikesh, Dehradun in Session Trial No.

86 of 2012, State Vs. Rakesh Kumar

Shah.

 Arising from Case Crime No. 319 of 2011.

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 Offences under Sections 376, 504 and

506 I.P.C.

These appeals arise of the judgment dated 19th

March 2013 as rendered in the Sessions Trial No.

86 of 2012 “State Vs. Rakesh Kumar Shah”, passed

by the Additional Sessions Judge (First), Rishikesh

Dehradun. As a consequence of rendering of the

impugned judgment dated 19th March 2013, the

appellant, who happens to be the natural father of

prosecutrix has been held out to be guilty for

offences committed by him which are punishable

u/s 376 read with section 506 IPC and had been

acquitted for the offences punishable under

Sections 323 and 504 I.P.C.

2. After conclusion of the trial, the learned

Sessions Judge is said to have appreciated the

evidence and had come to a conclusion that the

offence as leveled against the appellant under

Sections 376 and 506 I.P.C. has been established,

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and consequently he was sentenced to undergo a

rigorous imprisonment for term of ten years and

had been imposed with a penalty of Rs.10,000/-

and further in an event of default to remit the

penalty, he had been directed to further undergo

an additional term of rigorous imprisonment for a

period of four months. He had also been further

sentenced for a rigorous imprisonment for a period

of one year for the offences punishable u/s 506

IPC. Both the sentences had been directed to run

concurrently.

3. The appellant is in jail. His bail application

has been rejected by the coordinate Bench of this

Court, while admitting the appeal on 16th April

2013.

4. Heard Mr. Puran Singh Rawat and Mr.

Bhuwan Chand Bhatt, Advocates for the appellant

and Mr. Sachin Pawar, Brief holder for the State.

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5. Brief backdrop of the case as argued and

revealed from records, is that according to the

prosecution story, it was on 10th August 2011 that

the incident is said to have chanced in between

6:10 p.m. to 6:30 p.m., when the mother of the

prosecutrix is said to have heard the voice and

shouting of her daughter i.e. the prosecutrix

coming from a room and on hearing the voice, she

rushed to the room from where the voice was

coming and where the incident has chanced and

saw that her husband, Rakesh Kumar Shah,

appellant in the present appeal, was found in an

objectionable position committing rape on her

daughter, Km. Shikha. The complainant

(Damyanti, wife of the appellant) had submitted

during the course of investigation that the

prosecutrix, Km. Shikha had informed her that for

couple of months together, the appellant was

repeatedly committing the offences on her by

exerting threat of dire consequences and at times,

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even had physically assaulted her to meet his evil

objective and physical lust by commission of an

offence of rape. She further submitted that the

prosecutrix has also informed her that the

appellant has threatened the prosecutirx that in

case, if she divulges any fact about the incident

and of the commission of an offence of rape on her,

she would be put to death. Even according to the

mother Damyanti, an identical threat was extended

to her too also by the appellant, so that the

incident may not be brought to the knowledge of

relatives, friends and to the public and he may

succeed in his ill motive.

6. It is quite normal that on witnessing the said

incident, no mother would have seen her husband

and that too, a biological father committing the

offence of u/s 376 IPC on her own biological

daughter. Being this, PW1 being flabbergasted and

taken aback by the said incident, she had lodged

an FIR through post with the SHO, Kotwali,

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Rishikesh (Exhibit paper 53 Ka), informing about

the said incident and praying that a relevant

investigation and consequent prosecution may be

drawn against the appellant-husband. The said

FIR was written by Smt. Vandana on 12.08.2011

at 16:00 hrs. in the Police Station, Kotwali,

Rishikesh.

7. According to the decipher of the incident made

in the FIR, the knowledge to the complainant about

the incident which is said to have taken place on

10th August 2011, has been attributed due to the

shouting which she heard of her daughter (the

prosecutrix), at the time when the offence was

being committed on 10.08.2011 by the appellant-

husband. It is based on this information that she

has taken it as to be the source of knowledge for

lodging of the FIR by post of the incident dated 10th

August 2011, which was lodged before the SHO,

Kotwali, Rishikesh on 12th August 2011 at about 4

P.M.

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8. On the basis of lodging of the F.I.R. on

10.08.2011 at about 4:00 P.M., it is said that at

about 6:30 p.m. on 12th August 2011, a medical

examination was conducted on the prosecutrix by

PW5 Dr Richa Thapliyal, wherein, prior to the

conduct of medical examination, it is reported that

the prosecutrix is said to have extended her

consent to be internally examined by the medical

examiner. According to the medical examination

report, as conducted by the doctor on the

prosecutrix, it has been reported that on the

physical examination of the prosecutrix, there was

no mark of injury found on any part of the body of

the prosecutrix. It was further reported that the

prosecutrix was physically well developed; having a

height of 5.2 feet; above 48 kg of weight, breast

was fully developed and had all the physical

developments, which a young girl at this age is

supposed to have.

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9. In the report thus submitted on 12th August

2011, it has been observed by the medical

examiner that on examination of the private parts

of the prosecutrix, it was found that pubic hair

was present, clothes were not stained; the uterus

was normal; though hymen was reported to be

found torn and had a granulated margin. There

was no bleeding and no discharge of any fluid from

vagina on being touched at the time of medical

examination.

10. On scrutiny of the report, it was found that

the vaginal slides were taken and sent for the

pathologists to SPS Hospital, Rishikesh for the

examination of existence of spermatozoa and also

advised to conduct an x-ray on the knee and the

elbow of the prosecutrix and also recommended for

Radiological examination to determine the age in

accordance to the biological standards.

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11. The radiological examination, as conducted at

SPS Hospital, Rishikesh, it has been opined by the

doctors in their report that the vagina freely admits

two fingers and hymen was torn and vaginal fluid

has been sent to the pathology and to the

radiologist for examination of the age of

prosecutrix.

12. The samples thus sent as reported in the

medical report dated 12th August 2011 was

examined on 24th August 2011 and, it has been

reported in supplementary medical report of the

medical examiner, PW5 Dr Rihcha Thapliyal that

on examination of the slides “there was no

spermatozoa has been seen either dead or alive”

and according to the x-ray reports of knee and

elbow, her age has been opined to be of 19 years. It

has been opined by the medical examiner, Dr

Richa Thapliyal that:-

i) no definite opinion regarding rape can be
given

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ii) she, the prosecutrix, was habitual to
penetration

13. The prosecutrix in her statement as recorded

u/s 164 Cr.P.C., though the statement made

under Section 164 Cr.P.C. may not be treated as to

be reliable and credible piece of evidence, until and

unless, the facts stated there are supported by

other evidences on record before the Trial Court.

Much credence cannot be placed but in the present

case, looking to the statement of prosecutrix with

medical examination report, it could be read so as

to come to a rational conclusion about the

commission of offence and fixation of criminal

liability. In Case Crime No. 319 of 2011, as

registered before the Court as S.T. No. 86 of 2012,

she had stated that one of such incident has

happened in May 2011, when the appellant is said

to have sent her mother to Holy Ganges and at

about 6:00 to 6:30 p.m., when she had left, then

his father (appellant herein) has “again” committed

rape on her by exerting pressure, meaning thereby,

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the act of commission of rape by father, it was

recurring as per statement of prosecutrix. She

further submitted in her statement u/s 164

Cr.P.C. that she was frequently threatened by

accused of dire consequences in case if she

divulges any information to her sisters and her

mother. She submitted that in May 2011, a

physical relationship was established by her father

by force.

14. The prosecutrix also recorded a statement of

fact to the effect also that in the month of June

2011, she had gone to her Grani’s (Nani) place at

Neelkanth, and on her return on 27th June 2011,

her father again sent her mother to the Holy

Ganges and had committed a rape on her (i.e. the

prosecutrix). The prosecutrix submitted that taking

advantage of the fact that she used to reside alone

in the residence, her father had taken advantage of

the solitude, committed offence on number of

occasions on her. She also deposed that when the

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crime was committed on 10th August 2011, the

modus operandi as adopted by the appellant on

that day also was that he has sent the wife to river

Ganges but on account of there being fortunate

rain, complainant-wife returned back earlier to the

home at about 6:40 p.m and had witnessed the

said incident.

15. According to the site plan as prepared by the

Investigating Officer on 19th August 2011, the

place of occurrence of offence has been shown to

be the house bearing number D-194. The

Investigating Officer, after holding an investigation

on the FIR No. 169 of 2011 dated 12th August

2011, registered as Case Crime No. 319 of 2011

and had submitted the charge-sheet against the

appellant being charge-sheet No. 160 of 2011

dated 27th August 2011. It has been observed in

the charge-sheet that taking into consideration the

statement of witness, the Spot Inspection Report,

the Medical Report and the statement of the

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prosecutrix as recorded u/s 161 and 164 Cr.P.C.,

the occurrence of incident stood established and

recommended for trial and punishment.

16. In support of the prosecution case, the list of

witnesses, which was produced before the learned

Trial Court included Damyanti, (the complainant

and the mother of the prosecutrix and the wife of

the appellant) as PW1. The prosecutrix herself had

appeared and recorded her statement before the

learned trial Court as PW2. The Sub Inspector,

Bhawna Kainthula, who carried on the

investigation, appeared as PW3. Rakesh Kumar

Bhandari was produced as PW4, who was a

teacher by profession and teaching in Guru Ram

Rai Public School, Rishikesh, in which, the

prosecutrix, Km. Shikha had studied as a witness

of age of prosecutrix. Dr Richa Thapliyal appeared

as PW5 and Smt. Menu Kalra, the Principal of

Divine Academy, Veerrbhadra Road, Rishikesh as

PW6.

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17. The accused in his defence has produced Km.

Priyanka Shah, a 7 years’ old daughter as DW1

and he, himself recorded his statement as DW2.

18. In the statement as recorded by the appellant

u/s 313 Cr.P.C. before the learned Additional

District Judge, Rishikesh on 2nd March 2013, while

answering the question posed to him, he has

submitted that he has been falsely implicated in

the incident because of the misunderstandings,

which he was having with his wife (complainant)

for a long time, and denied to have committed any

rape on the prosecutrix. He, while answering to the

questions u/s 313 Cr.P.C. has also denied the fact

that ever he has used any abusive language or had

extended any threat of life either to the

complainant Damyanti or to the prosecutrix. He

denied the propriety of the record and submitted

that he has been wrongly implicated at the behest

of his wife, with whom certain domestic disputes

were going on.

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19. The fact of the age of the prosecutrix has been

endeavoured to be denied by the appellant in his

statement recorded u/s 313 Cr.P.C., when he

alleged the date of birth as to be 16th May 1998 but

the said denial cannot be taken as to be true for

the reason that in accordance with the transfer

certificate, as issued in favour of the prosecutrix by

Guru Ram Rai Public School, Rishikesh, her date

of birth as per school records has been recorded to

be as 16th May 1998, which was also corroborated

from the Admission Form as submitted before the

Divine Academy, Veerbhadra Road, Rishikesh

which is on record as paper No. 29ka and 37ka

respectively.

20. This declaration of the certificate of date of

birth has been initialled by the appellant as father

of the proxecutrix himself. Thus, on the scrutiny of

the documents, age of the prosecutrix comes

around to be about 13 years of age on the date of

the incident i.e on 10th August, 2011 though, on

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the medical examination she is shown to be of 19

years of age. On scrutiny of the statement of

Dmyanti PW1, it is almost the narration of the

facts which she asserted in the FIR as lodged by

her on 12th August 2011. In continuation of her

statement, PW1 which started on 16th January

2012 and was continued on 12th January 2014,

PW1 complainant has made a statement under

Section 200 Cr.P.C. to the effect that she was

married with the appellant in 1996 but after some

years of marriage, despite their being three

children born out of the wedlock, there had arisen

a dowry dispute between the husband and the wife

which was later on decided on the basis of a

compromise and the appellant was exonerated. It

has also revealed from a statement of PW1 that

there had been a proceeding between the appellant

and the complainant-wife u/s 125 Cr.P.C. but she

submitted that ultimately a compromise was

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entered into and she started living together with

her husband.

21. PW1, Damyanti, in her statement had further

submitted that in the written statement as filed by

the appellant in the proceedings u/s 125 Cr.P.C on

12th December 2000, the appellant has leveled an

allegation against PW1 about her chastity and it

was after the compromise, she submitted that two

children were born and the youngest of their being

Mahima, who lives with her.

22. In her statement as recorded by PW2, the

prosecutrix, she also supported the incident of 10th

August 2011 and reiterated her statement that the

appellant used to enter into physical relationship

by force, even prior to 10th August 2011, which can

be co-related by the statement of the prosecutrix

recorded u/s 164 Cr.P.C., as well as that of PW1,

though the statement as recorded u/s 164 Cr.P.C.

may not be a corroborated as to be a credible piece

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of evidence, but once it is read with the statement

of PW2 as recorded before Court, it shows that she

has deposed that the incidents of physical relation

had occurred even prior in time, i.e. 10.08.2011

when the appellant is said to have committed the

offence of rape on her earlier by exerting pressure.

She reiterated the incidence of May and June

2011. In her statement she has recorded the

following facts:-

**nknk nknh ls ge vyx gSaA nknk nknh dk ?kj esjs ?kj ls vk/ks
?kaVs iSny gksdj iM+rk FkkA esjh nks cgusa Hkh esjs lkFk ?kj ij
jgrh FkhA mlh ?kj ij jgrh FkhA eqs irk ugha fd eEeh nknk
nknh ds lkFk D;ksa ugha jgrh FkhA eSus viuh eka dks nknk nknh
ds ;gkWa tkrs gq, Hkh ugha ns[kkA
esjs ekek lrh”k esjs ?kj ugha vkrs FksA esjs ikik o esjs ekek
lrh”k ds laca/k [kjkc Fks blfy, os ugah vkrs FksA esjs firk o
eka dk esjs lkeus xM+k ugha gksrk Fkk vkSj esjh eka us eqs ugha
crk;k fd mlds laca/k firk ds lkFk [kjkc gSaA eqs ;g irk gS
fd esjh eEeh o ikik ds chp dbZ eqdnesa pys gSaA ;s Hkh lgh gS
fd eSa o esjh eka esjs firk ls dkQh le; vyx Hkh jgs FksA esjs
lkeus mudk xM+k ugha gksrk Fkk ijUrq ;g lgh gS fd muesa
vkil esa xM+k gksrk Fkk blfy, vyx jgs FksA eqs ekywe ugha
fd ikik eEeh ds mij jksdVksd djrs gksa bl dkj.k xM+k
gksrk gksA**

23. Apparently, on scrutiny of the statement as

recorded by the prosecutrix, there had been certain

misunderstandings between the complainant as

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well as the other family members, in-laws and the

appellant and that is why the prosecutrix has

recorded her statement that her mother never used

to visit the home of the grandparents of the

prosecutrix and further she has recorded her

statement that there is no cordial relationship of

accused with the maternal uncle of the

prosecutrix, namely Satish, and also the fact that

the appellant used to object into the activities of

the complainant-wife. She further recorded her

statement that she wants to live with her mother

and also even the complainant (mother of the

prosecutrix) does not want to live with the

appellant-husband.

24. The statement of PW3, Bhawna Kainthula has

supported the investigation version, which was

conducted by her after 12th August 2011 and

charge-sheet submitted by the investigating officer

on 27.08.2011. She supported the report and the

charge-sheet submitted by her against the

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appellant, whereby she has submitted that the

prima facie incident as alleged in the

complaint/FIR No. 169 of 2011 dated 12th August

2011 is shown to have been established. So far as

the statement of PW4 (Rakesh Kumar Bhandari) is

concerned, who is a teacher of Guru Ram Rai

Public School, Rishikesh was only for the purpose

to establish the age of the prosecutrix, as per the

records available in the said Institution. PW4

Rakesh Kumar Bhandari supported the recording

the date of birth of the prosecutrix in the school

records to be 16th May 1998, based on the records

which were carried forward from the earlier School

i.e. Divine Academy, Veerbhadra Road, Rishikesh.

25. What will be relevant for the consideration of

the present appeal is the statement of PW5, Dr.

Richa Thapliyal, who is a doctor, and who has

physically examined the prosecutrix. On scrutiny

of the medical report and statement of PW5 Dr.

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Richa Thapliyal, following conclusions have been

drawn by her:-

i) that she was in a conscious state
when she was brought for medical
examination;
ii) On medical examination, no injury
was found on any part of her body
including private parts;
iii) The breast and pubic hair was fully
developed;
iv) On an internal examination, no lump
was found;
v) It was reported that the hymen was
torn;
vi) Granulated margins in the vagina
was not present;
vii) Slides sent for the examination, no
spermatozoa was found;
viii) The vagina was permitting the entry
of two fingers and;
ix) She expressed that no opinion for
rape could be established and the
prosecutrix was habitual of
penetration.

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26. Based on the aforesaid evidence and on its

scrutiny, the learned First Additional District and

Sessions Judge, while adjudicating Sessions Trial

No. 86 of 2012 “State vs Rakesh Kumar Shah” by

its judgment dated 19th March 2013 had convicted

the appellant u/s 376 read with Section 506 IPC

and acquitted him for an offence u/s 323 and 504

IPC. The learned First Additional District and

Sessions Judge while hearing on the sentence has

imposed the following punishments:-

**vkns”k
vfHk;qDr jkds”k dqekj “kkg dks /kkjk 376 Hkkjrh; n.M lafgrk
ds vkjksi esa 10 o’kZ ds lJe dkjkokl rFkk 10]000@ :i;s
vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M vnk u djus ij
vfHk;qDr dks pkj ekg dk vfrfjDr dkjkokl Hkqxrku gksxkA
vfHk;qDr dks /kkjk 506 Hkkjrh; n.M lafgrk ds vkjksi esa ,d
o’kZ ds lJe dkjkokl ls nf.Mr fd;k tkrk gSA
nksuksa ltk,a lkFklkFk pysaxhA
vfHk;qDr dks /kkjk 323 o 504 Hkkjrh; n.M lafgrk ds vkjksi esa
nks’keqDr fd;k tkrk gSA
vfHk;qDr dks ltk Hkqxrus gsrq ltk;koh okj.V cukdj ftyk
dkjkxkj izsf’kr fd;k tk;sA
bl fu.kZ; dh ,d izfr vfHk;qDr dks fu%”kqYd iznku dh tk;sA**

27. Hence the present Appeal.

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28. On scrutiny of the judgment and the evidence

and on its appreciation and reasoning as extended

by the learned Additional District and Sessions

Judge is that the learned Trial Court has recorded

a reasoning that in cases, where the offence alleged

is that of rape, it is merely the satisfaction of the

Court to act on the evidence of the prosecutrix,

and for the said purpose, no rule or practice is

required to be followed to look for corroboration of

the incidents.

29. Learned District and Sessions Judge has also

recorded a finding to the effect that on scrutiny of

the statement of PW1, the complainant/mother,

she has supported the incident which has occurred

on 10th August 2011, wherein she has witnessed

the commission of an offence by the appellant. The

Trial Court observed that the statement of PW1

was also supported by the statement of the

prosecutrix as PW2 for holding that an offence was

committed. The defence case was that no reliance

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can be placed on the statement as recorded u/s

164 Cr.P.C. of the prosecutrix and that of the

complainant as there happens to be a massive

contradiction with regard to the statement that the

complainant having gone to the Holy Ganges after

having been sent by the appellant and there

happens to be a conflict pertaining to the time of

going to the river Ganges and her return from there

to the place of occurrence. The contradiction which

has been recorded and taken into account by the

Learned District and Sessions Judge was that PW1

has stated that she returned to the place of

incident at about 7 p.m. on 10th August 2011,

whereas in the statement of PW2 it has been

recorded that the prosecutrix has made a

statement that her mother PW1 has returned at

the place of incident at 6 p.m.

30. The inference which has been drawn by the

learned trial Court is that irrespective of the time of

return of the complainant to the place of incident,

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it will not have any material consequence and

bearing on the case, for the reason that at least in

either of the circumstances, irrespective of the time

on which the complainant returned, at least

commission of an offence of rape having been

committed by the appellant, would be established

by other corroborating evidences. On scrutiny of

the statements of the prosecutrix, pertaining to the

narration of the incident of 10th August 2011, she

submitted that on the date of the incident, her

younger sister was present at home along with her

mother and when the appellant returned home at

4:00 p.m. food was served to the appellant by the

complainant (mother of the prosecutrix) and it was

then only she was asked by the appellant to go to

river Ganges. The prosecutirx also admits the fact

that at that point of time when the incident

occurred, she was sitting at veranda and she was

pushed into the room by the appellant by force

against her wishes and by surprise.

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31. On scrutiny of the findings as recorded by the

learned trial Court while considering the cross

examination of PW2, she admitted the fact that on

10th August 2011, a dispute has arisen between

the appellant and the complainant PW1. On

account of which, it is further an admitted case of

PW2 that the appellant (her father) left the home

and returned back after two hours. But, what is

surprising is that when the incident was witnessed

by the complainant on 10th August 2011 is alleged

to have chanced between 6:00 p.m to 6:30 p.m, it

does not repose confidence to the prosecution

story, for the reason that according to the

statement of PW2, her mother is said to have

returned at 7:00 p.m. Let us presume that

irrespective of the fact pertaining to as to what

impact of return of complainant and time would

have on the incident, what is relevant is that a

mother, after seeing her daughter being raped by

her husband between 6:00 p.m to 6:30 p.m. and

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she being the sole eyewitness, why she did not

immediately lodged an FIR. There is another aspect

which has to be taken into consideration is that

admittedly, according to the statement of PW2,

after the fight between the appellant and the

complainant-wife on 10.08.2011, i.e. date of

incident, PW2 state that the appellant-husband

has gone out of the house and returned after two

hours, there is yet another doubt on the propriety

of the incident as to why the complainant-wife who

was eye witness of incident or the prosecutrix

herself has not lodged the first information

report/complaint within those two hours, available

to them when the appellant was out of the home.

32. There is another doubt which has been

created according to the prosecution story, which

has been developed by the prosecution is that

pertaining to the incident of commission of rape of

the prosecutrix in June 2011, she admits in her

statement that the prosecutrix lived along with the

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family used to take food together. But, yet again,

what could be witnessed on scrutiny of statement

of this witness is that there was no complaint

lodged by the prosecutrix either of the incident of

May 2011 or that of June 2011. Even on the

scrutiny of the statement of PW1, it could further

be arrived at that it is not the case of Damyanti

PW1 that at any point of time, prior to 12th August

2011, when the FIR was lodged for first time, there

had been any efforts made by the complainant-wife

(PW1) or even by the prosecutrix (PW2) to lodge

any complaint or FIR before any competent

authority of the prior incident.

33. This very fact that earlier incidents were not

reported to as no FIR was lodged, they do not

repose confidence to the incident of 10th August

2011 for the reason that by that time, the

appellant and the complainant were already in a

discordial relationship as husband and wife and

there had been number of litigations going and

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pending inter-se between them till it was

compromised at a later stage. Further, a doubt

which could also be created is that it is an

admitted case and as apparent from the evidence

and statement of PW2 also that the complainant

was not enjoying cordial relationship with the

parents-in-law and the husband-appellant too did

not enjoy the cordial relationship with his brother-

in-law (Satish). Hence, the surrounding

circumstances of lack of cordial relationship could

also lead to an inference that a complaint as lodged

on 12th August 2011, was also cannot be ruled out

to be the outcome of revenge. Now, on the scrutiny

of the contents of the FIR dated 12th August 2011,

it is an admitted case, according to the statement

of PW1 and PW2 that when the offence was being

committed by the appellant, both the PW1 and

PW2 submitted that the prosecutrix was shouting,

if there was a shout, a reasonable corollary which

follows is that, there is bound to be a retaliation,

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and in such type of an offence which is being

committed against the wishes, in hot heat of action

which offence is being committed. If there is a

retaliation, then there is bound to be certain

physical injuries on the body of the prosecutrix,

which is not there in the instant case. Even it is

not the case of prosecution about the injuries

being suffered by prosecutrix, which have been

settled by the judgment too for the reason that

even the trial which has been concluded by the

impugned judgment has exonerated the appellant

u/s 323 and 506 IPC, which too shows that there

was no altercations or injuries caused on the

prosecutrix. In that event, the case as built up that

PW2 got knowledge of incident on hearing the

shouting of prosecutrix cannot be believed with.

34. This Court, being conscious about the

evidence, which was led by the prosecution Balbir

Singh, PW4 and Meen Kalra, the Principal/ PW6 to

show that the date of birth of the prosecutrix as

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recorded in the school records of the prosecutrix is

16th May 1998, on its calculation, on the date of

incident, she could be said to be of about 13 years

of age and in that eventuality, even her statement

if it is found that there were certain lacunas, could

not be taken as to be of determinable piece of

evidence, but the medical examination report as

conducted by Dr. Richa Thapliyal PW5 cannot be

brushed aside and in her report and the statement,

apart from the fact that the age of the prosecutrix

has been shown to be of 19 years of age. It further

goes to show that according to the medical report

and the slide tests which was sent to the

radiologist there was no sperms/cells present

either dead or alive and it has come in the medical

report that no opinion of rape was established and

furthermore, it has also come on record that the

prosecutrix was habitual of penetration and opined

the non-commission of the offence. The medial

report observes that prosecutrix was habitual of

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penetration, then why FIR was not lodged by her

earlier, or why she has not narrated the incident to

her mother who was not in good relation with

accused. Records do not have any birth certificate

issued by competent authority on record, normally

parents when they admit child in school, they

record lesser age, anticipating a future in career.

Thus, date of birth as recorded cannot be taken to

be absolute proof of age and would not override the

age determined by medical experts which is more

based upon a scientific method, that too when the

age as reported by medical experts was not denied

by the prosecution.

35. The reasoning which has been assigned by the

learned Court below is on the scrutiny of the

statement of the prosecutrix u/s 164 Cr.P.C., it

has been settled by the Courts of law that

statement under Section 164 Cr.P.C., it cannot be

treated as to be a conclusive and exclusive piece of

evidence and the analogy, which has been given by

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the learned trial Court to the effect that for the

purposes of establishment of an offence of rape,

the statement of prosecutrix is sufficient, there is

no doubt about the said proposition, but the

statement has to be taken into consideration in the

light of the so-called age of the prosecutrix because

even at age of 13 years, a child in this modern era

is quite aware of surrounding and consequences,

which has been sought to be pressed upon by the

prosecution on the statement of PW4 and PW6.

Hence the statement of minor ought not to be

taken as a conclusive proof in view of that fact if it

has to be read with the medical report, as

submitted by Dr. Richa Thapliyal PW5.

36. The view taken by the learned trial Court that

minor contradictions in the statement of

prosecutrix would not have any bearing on the

entire incident and has to be read with the other

surrounding circumstances on record. Apparently,

the contradiction which has been dealt by the

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learned trial Court was pertaining to the time at

which the complainant returned from river Ganges,

whether it was 6:00 pm or 7:00 pm. According to

the defence version, which has come on record,

there is doubt about the time which PW1 returned,

heard the voice and saw the incident. But as per

PW1 and PW2, there being a dispute between

husband and wife on 10.08.2011, i.e. date of

incident, husband leaving the home and then too

lodging the FIR during the intervening period of

two hours, creates a doubt about the contradiction

in the statement of prosecutrix and that of

complainant.

37. The commission of an offence of rape has

always to be appreciated with the existence of

consent, looking to fact that admittedly the

incident, which has occurred earlier, there had

been no complaint or FIR lodged by PW1 or PW2

which itself, creates a doubt about the incident

and its propriety. Even according to the site plan of

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the place of occurrence, where the offence is said

to have been committed, it is said that rape has

been committed in house No. D-194, which was an

accommodation of the appellant, where he

occasionally visited, which has an occupancy of

only one room with a kitchen and a toilet.

Whereas, on the other hand, according to the

prosecution story and narrations made in the

statement and evidence, the house in which the

offence was committed, it shown to have two

rooms, two kitchens and on the scrutiny of paper

number 45ka/9 which is the site plan of the place

of incident, learned trial Court has held that the

house has got only one room, kitchen and a

veranda. The learned trial Court, while scrutinizing

the statement of the appellant to the effect that for

the purposes of scrutinizing the exact place where

the incident has occurred, he has made a

statement that he occupies the adjoining house

also, hence there is a doubt about the exact place

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of occurrence of the incident cannot be accepted

for the reason that it is no one’s case either of

complainant or prosecution and even according to

the investigating officer’s report, the offence is said

to have been committed in house number D-194

hence even if the appellant’s statement that he

occupies the adjoining house is taken into

consideration, then too, it cannot be believed that

the offence was committed in the adjoining house,

which would be contrary to the pleadings and the

evidence on record.

38. This aspect of the place of commission of an

offence whether it is from House No. D-194 or the

adjoining house is still doubtful, because according

to the statement of the prosecutrix, the entire

family, which constitutes the wife, husband and

other sisters of the prosecutrix were living in it.

The defence at the trial stage has also argued

about the impact of the delayed lodging of FIR.

While dealing with the said issue, the learned trial

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Court was rather impressed upon the fact that

there might chanced a delay in lodging the FIR of

the incident of u/s 376 IPC, because, normally, in

rape cases, the victim always suffers from a

trauma and also from the likelihood of the social

defame and taboos, attached to the incident and

hence there may be a situation where a lady, who

is the victim of the sex crime, may also refrain from

thinking it over and over again before lodging an

FIR, whether to lodge it or not so as to protect her

self-respect and social honour.

39. This may, at times be true, but not always,

particularly, when in the instant case, admittedly,

according to the prosecutrix, there had been earlier

incidents also which have been corroborated by the

medical report that the prosecutrix was habitual of

having sex, hence this notion that it would be

tarnishing her social image cannot be drawn for

defending the issue of the effect of delayed lodging

of FIR.

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40. Thus, under these circumstances and for the

reasons assigned above, the sentence and

punishment, as imposed on the appellant by the

judgment dated 19th March 2013 is set aside and

quashed and the appellant is exonerated of an

offence u/s 376 and 506 IPC. Consequently the

appeals stand allowed. The appellant is in jail.

He shall be released forthwith, if not wanted in any

other case.

41. Let the lower court record be sent back to the
court concerned. The compliance report be
submitted within a period of three months.

(Sharad Kumar Sharma, J.)
14.02.2018
Mahinder/

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