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Baldev Singh vs Coram on 26 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

.

Cr. Appeal No. 96 of 2016

Reserved on : 21.11.2018
Decided on: 26.11. 2018

Baldev Singh …….Appellant

Versus

State of H.P.

Coram
r to

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

…Respondent

Whether approved for reporting?1 Yes.
For the appellant: Mr. Rajiv Rai, Advocate.
For the respondent: Mr. R.P. Singh and Mr. Kunal

Thakur, Dy. A.Gs.

Dharam Chand Chaudhary, Judge.

Appellant Baldev Singh (hereinafter referred to

as the ‘accused’) is a convict. He has been convicted by

learned Additional Sessions Judge, Hamirpur (H.P.) for the

commission of an offence punishable under Sections 376

and 506 of the Indian Penal Code and sentenced to

undergo rigorous imprisonment for seven years and to pay

Rs.20,000/- as fine under Section 376 IPC and to undergo

simple imprisonment for one year for the commission of

offence punishable under Section 506 IPC vide judgment

passed in Sessions Trial No. 2 of 2015.

1

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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2

2. The present is a case wherein either way, a

very pious and sensitive relationship between father-in-law

.

and daughter-in-law are at stake, because the victim of the

occurrence is none-else but the daughter-in-law of accused

Baldev Singh. Therefore, if the prosecution case as

disclosed from the final report and the documents filed

therewith, if ultimately turns as correct, the pious

relationship between the father-in-law and daugther-in-law

would certainly get tarnished and in case turns to be false,

the result would remain the same.

FACTS OF THE CASE:

3. PW-4 Jaspal is the son of accused Baldev Singh.

He was married to the prosecutrix (PW-10) (name

withheld) on 8.8.2013. He had been working in some

private company at Baddi, Tehsil Nalagarh, District Solan,

H.P., and used to visit his house at village Dharyara, Tehsil

Tonidevi, District Hamirpur intermittently. In his absence,

his wife, the prosecutrix used to live with his parents,

accused Baldev Singh and mother Shakuntla Devi. In the

month of May, 2014, the prosecutrix went with her father

to her parental house situated at village Dain, Tehsil

Barsar, District Hamirpur, H.P., and did not return to

matrimonial home. He, therefore, came to his village from

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Baddi in the month of June, 2014. He accompanied by PW-

2 Pawan Kumar, PW-3 Sushma Devi and also his uncles Anil

.

Kumar and Kashmir Kumar went to the house of his in-laws

at village Dain on 28.6.2014 to bring the prosecutrix back

to the matrimonial home. They all persuaded her to join

the company of PW-4 and return to matrimonial home, but

at the pretext that the accused had subjected her to sexual

intercourse repeatedly while in unconscious condition on

account of smoke of “Dhuni”, he had been administering

to her to cure the disease from which she allegeldy was

suffering during mid night, she refused to return to the

matrimonial home.

4. As per further case of the prosecution, the

prosecutrix accompanied by her father Balbir Singh, PW-11

went to Police Station, Bhoranj on 4.7.2014 and lodged the

FIR Ext. PW-15/A with the allegation that she fell ill in the

Month of February, 2014. When disclosed this fact to her

mother-in-law, the latter advised her to take treatment

from her father-in-law, the accused who allegedly was

“Chela” and professes to have treated many patients with

the help of witchcraft, he had been knowing. On the

advise of her mother-in-law, the prosecutrix went to the

accused, who on seeing her told that she was suffering

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from “Opra” (psychological disorder). He advised her that

with the help of “Dhuni” (mixture of grain items/herbs etc.

.

etc., duly mashed with either Desi Ghee or oil), which he

will administer to her during mid-night i.e. in between

11.00-12.00 and she will be alright. The accused

accordingly started treating her by administering “Dhuni”.

In the beginning for 2-3 days, the effect of smoke

r to
emanating from “Dhuni” was not so severe, rather mild.

However, after 2-3 days, due to smoke emanating, she

started becoming unconscious. It is taking advantage of

such a situation, the accused allegedly subjected her to

sexual intercourse, while she being in a state of

unconsciousness. On one day, when she all of sudden

woke-up, noticed herself naked and accused sleeping with

her. It is on that day, finding herself in naked condition

and the accused sleeping with her, she came to know that

she had been subjected to sexual intercourse. When she

told him that what he did is not right and that she will

apprise her husband and mother-in-law, he threatened her

with dire consequences. In the month of March, 2014,

accused asked her to accompany him to Shimla for getting

her ultrasound conducted. When she refused, he told that

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he will not allow her to go to her parents. Her cellphone

was also snatched.

.

5. It is in the month of April, 2014, her husband

came to the house and she apprised him about the entire

episode. He, however, did nothing and returned to Baddi.

In the month of May, 2014, her father Balbir Chand (PW-

11) came to her matrimonial home. She went with him to

the house of her parents. Her father taking note of her

condition, asked as to what happened. She, however, did

not disclose anything to him due to fear and to save the

honour of the family. However, in the month of June, 2014,

on being asked by her father, she disclosed such act the

accused committed with her to him also. On this, her

father called the accused repeatedly, however the latter

failed to respond to his calls. It is on such allegations, the

FIR Ext. PW-15/A came to be recorded in Police Station,

Bhoranj against the accused.

6. The police swung into action. ASI Jai Chand

after registration of FIR Ext. PW-15/A arranged to send the

prosecutrix to CHC, Bhoranj for getting her medical

examination conducted through Constable Santosh Kumari

PW-13. Application Ext.PW-15/B in this regard was made

to the Medical Officer and she was examined and MLC

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Ext.PW-5/A was obtained and taken on record. The

accused was arrested on 5.7.2014 and also interrogated.

.

On the same day, he was also got medically examined in

the Community Health Centre, Bhoranj. PW-14 LHC Sanjay

Kumar and Constable Surinder Kumar had taken the

accused to Hospital and his medical examination was

conducted by Dr. Prithi Chaudhary PW-6 vide MLC Ext.PW-

6/B.

On the identification given by the prosecutrix, the

map of the place Ext.PW-15/C, where the accused had

been administering ‘Dhuni’ and subjecting the prosecutrix

to sexual intercourse was prepared. The photographs of

that place were also taken and the investigation conducted

there videographed by HHC Kuldeep Singh, PW-9. On

7.7.2014, the statement of prosecutrix was got recorded

under Section 164 Cr.P.C in the Court of learned JMIC,

Hamirpur. On the same day, her ultrasound was also got

conducted in Regional Hospital, Hamirpur vide report

Ext.PW-12/C. The thermo prints thereof are Ext.PW-12/B.

Shri Kashmir Singh PW-1 has prepared the CDs of

photographs Ext. PW-1/A and Ext.PW-1/B. The Secretary,

Gram Panchayat, Kanjian PW-7 Pawan Kumar had

produced the copy of Parivar register Ext.PW-7/A and it

was taken on record. The statements of witnesses Ext.PW-

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15/D, Ext.PW-15/E, Ext.PW-15/E, Ext.PW-15/F and Ext.PW-

15/G were recorded as per their version. The statements

.

of remaining prosecution witnesses under Section 161

Cr.P.C were also recorded.

THE OUTCOME OF THE INVESTIGATION CONDUCTED:

7. On the completion of the investigation and

receipt of report from the Forensic Science Laboratory,

Inspector/SHO Om Chand PW-16 has prepared the final

report and filed the same in the Court. Since the offence

the accused allegedly committed was triable exclusively by

the Court of Sessions, therefore, committed accordingly.

8. On completion of investigation, it transpired

that somewhere in the month of February, 2014, the

accused subjected his own daugther-in-law (name

withheld) to sexual intercourse at a time while unconscious

on account of impact of “Dhuni”, which he had been

administering to her to cure her disease. In order to save

the honour of the family and being afraid of from the

accused, the matter was not reported to the police till

4.7.2014. Though, such an act attributed to the accused

was disclosed by the prosecutrix to her mother-in-law and

her husband, but of no avail, as they did nothing. She did

not disclose the incident even to her father also till June,

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8

2014, irrespective of being inquired from her because of

her deteriorating health condition.

.

9. With such allegations, the final report came to

be filed against the accused in the Court. On commitment

of the case by learned Magistrate, learned Additional

Sessions Judge had appreciated the final report and on

finding a prima-facie case having been made out against

the accused framed charge against him for the commission

of offence punishable under Sections 376 and 506 IPC. The

accused, however, pleaded not guilty and claimed trial.

The prosecution, as such, was called upon to produce the

evidence in support of its case.

PROSECUTION EVIDENCE IN NUT-SHELL:

10. The prosecution in order to sustain the charge

against the accused has examined 16 witnesses in all. The

material prosecution witnesses are the prosecutrix, PW-10,

her father Balbir Chand PW-11, Pradhan Gram Panchayat,

Kanjian Pawan Kumar PW-7. Ward Panch Sushma Devi PW-

3. Jaspal, the husband of the prosecutrix PW-4. Dr. Sapna

Dhiman PW-7 and Dr. Prithi Chaudhary PW-6. The

remaining prosecution witnesses are formal as PW-1

Kashmir Sing, proprietor of Sangam Studio, Bassi (Bhoranj).

He developed CDs (PW-1/A Ext.PW-1/B) from a memory

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card handed over to him by the police. He has also issued

the certificate Ext.PW-1/C in this regard. PW-7 Pawan

.

Kumar, the Secretary of Gram Panchayat who has

produced the abstract of parivar register Ext.PW-7/A qua

family of accused Baldev Singh. PW-8 Raghujit Singh was

posted as MHC who has received the case property and

retained the same and further sent to Forensic Science

Laboratory

place

where
for

the

analysis.

accused
Kuldeep

had been
Chand PW-9

videographed the proceedings qua identification of the

subjecting
had

the

prosecutrix to sexual intercourse, which later on

developed in the form of CDs by PW-1 Kashmir Singh,

proprietor of Sangam Studio, Bassi (Bhoranj). PW-12 Dr.

Rakesh Sharma is the Radiologist who had conducted the

ultrasound of the prosecutrix and submitted the report

Ext.PW-12/C along with thermoprints Ext.PW-12/B. As per

ultrasound he conducted, the prosecutrix was found with

gestation age as 25 weeks and three days. PW-13 Lady

Constable Santosh Kumari who had been accompanying

the prosecutrix to the hospital at the time of her medical

examination and collected various parcels preserved in the

hospital by the Medical Officer, which she has deposited

with MHC in the Police Station. PW-14 LHC Sanjay Kumar

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who accompanied the accused to the hospital for getting

his medical examination conducted. PW-15 ASI Jai Chand

.

is the Investigating Officer, whereas, PW-16 Inspector Om

Chand, the then Inspector/SHO, Police Station, Bhoranj,

District Hamirpur has prepared the final report and

presented the same in the Court.

11. The statement of accused under Section 313

Cr.P.C was also recorded. The prosecution case that the

prosecutrix is married to his son Jaspal PW-4, had been

residing with them in the matrimonial home as Jaspal was

working in private Company at Baddi and that the

prosecutrix fell ill in the month of February, 2014 have

been admitted as correct while answering questions No. 2

to 6. The facts that PW-11, the father of the prosecutrix

had been doing some private job at Ahmadabad (Gujarat)

and that in the month of May, 2014 he visited his native

village Dain and their house have also been admitted,

while answering question Nos. 24 and 25. It is also

admitted while answering question No. 31 that Jaspal, his

son accompanied by Pradhan/Ward Panch etc., went to the

house of parents of the prosecutrix, however, it is denied

that she refused to return to the matrimonial home at the

pretext that the accused had been subjecting her to sexual

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intercourse. It was also admitted while answering question

No. 36 that prosecutrix was pregnant. He has also

.

admitted that after his arrest on 5.7.2014, he was

subjected to medical examination. The rest of the

incriminating circumstances appearing against him in the

prosecution evidence have, however, been denied either

being wrong or for want of knowledge. According to him,

he is innocent and has not committed any offence.

however, opted for not producing any evidence in his

defence.

r He,

CONCLUSION DRAWN BY LEARNED TRIAL COURT:

12. Learned trial Court on appreciation of the oral

as well as documentary evidence available on record and

hearing learned Public Prosecutor and learned defence

counsel has convicted and sentenced the accused, as

pointed out at the very outset.

GROUNDS OF CHALLENGE:

13. The legality and validity of the impugned

judgment has been questioned on the grounds inter-alia

that the prosecution has miserably failed to prove its case

against the accused beyond all reasonable doubt and as

such, learned trial Court has returned the findings to the

contrary, convicting and sentencing the accused on the

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basis of hypothesis, conjectures and surmises. In view of

the prosecution evidence not inspiring any confidence, the

.

benefit of doubt should have been given to the accused.

The settled principles in criminal administration of justice

that the accused cannot be convicted until and unless it is

proved beyond reasonable doubt that he has committed

the alleged offence have been ignored. As per the

statement of prosecutrix recorded under Section 164

Cr.P.C., she had disclosed the incident to her father PW-11

in the month of May, 2014. The registration of case was,

therefore, stated to be delayed thereafter also till July,

2014. There is no evidence suggesting that the accused

attacked the prosecutrix with ‘Khukri’ as she disclosed in

her statement under Section 164 Cr.P.C., as she has not

stated so while in the witness box. Also that, the alleged

sexual assault committed upon her in the month of

February, 2014 was not disclosed by her to her husband

immediately and rather disclosed the same in the month of

April, 2014. As per her statement, after solemnization of

marriage on 8.8.2013, she stayed with her husband Jaspal

for a period about five months. Therefore, it is doubtful

that she was living there in the month of February, 2014

also, when allegedly assaulted sexually. The failure on the

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part of the Investigating Officer to obtain the record

pertaining to the treatment of the prosecutrix because as

.

per her own version, she had conceived child in the month

of January and was going for routine check-up to the

hospital at Bhota alone is also stated to be fatal to the

prosecution case. The failure of the I.O to take in

possession the ‘Dhuni’ items or atleast container in which

the same was being administered, is also fatal to the

prosecution case. Whether the accused was really a ‘Chela’

and knowing witchcraft, the independent witnesses from

the vicinity should have been examined. Nothing has

come in the statement of the prosecutrix recorded under

Section 154 Cr.P.C that she had disclosed the occurrence

to her mother-in-law, therefore, by stating so while in the

witness box she has improved her version. Rajan, the

cousin of the prosecutrix was not bed ridden, however,

driving scooty and also holding the driving licence. The

accused allegedly failed to arrange for such defence being

in custody. The impugned judgment, therefore, has been

sought to be quashed and the accused acquitted of the

charge framed against him.

RIVAL SUBMISSIONS:

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14. Mr. Rajiv Rai, learned counsel representing the

appellant-convict has argued with all vehemence that

.

learned trial Judge in a case of no evidence has not only

held the accused, none-else but the father-in-law of the

prosecutrix guilty of subjecting the prosecutrix, his

daughter-in-law to sexual intercourse but also convicted

him to rigorous imprisonment for seven years and to pay

r to
Rs.20,000/- as fine under Section 376 IPC and to undergo

simple imprisonment of for one year for the commission of

offence punishable under Section 506 IPC. The highly

doubtful and interested evidence having come on record

by way of own testimony of prosecutrix and her father PW-

11 has erroneously been relied upon. According to Mr. Rai,

it is writ large on the face of the record that the

prosecutrix and her father were interested to involve the

accused in a false case to the reasons best known to them.

The conduct of the prosecutrix that she did not disclose the

occurrence either to her mother till April, 2014 or even to

her husband also amply demonstrates that a false case has

been engineered with due deliberation against the

accused. When the occurrence was disclosed by her to

PW-11 in the month of May, 2014, why the registration of

case was delayed, is also a circumstance which renders the

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prosecution case highly doubtful. Learned trial Judge while

holding that the accused should have produced the

.

evidence to show otherwise according to Mr. Rai are highly

illegal and unknown in the criminal administration of

justice because the prosecution has to stand on its own

legs. Also that, when on the basis of evidence available on

record two possible views emerge, the view favouring the

r to
accused has to be accepted is also not taken into

consideration. It is also pointed out that the statement

under Section 313 Cr.P.C could have not been used against

the accused until and unless the prosecution itself

produced cogent and reliable evidence, suggesting the

involvement of the accused in the commission of the

offence. Therefore, it is urged that the accused has been

falsely framed in this case by leveling heinous allegations

without there being any proof qua the same. The

impugned judgment, as such, has been sought to be

quashed.

15. On the other hand, Mr. R.P. Singh, learned

Deputy Advocate General has argued that the own

statement of the prosecutrix in this case is sufficient to

hold the accused guilty of the offence. The same

according to Mr. Singh finds corroboration from other

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evidence i.e. the statement of her father PW-11 and also

the medical evidence. It has, therefore, been urged that

.

well reasoned judgment passed by learned trial Court calls

for no interference in the case in hand.

MY FINDINGS:

16. On hearing Mr. Rajiv Rai, learned counsel

representing the appellant-convict and Mr. R.P. Singh,

learned Deputy Advocate General as well as going through

the evidence comprising oral as well as documentary, no

doubt the offence the accused allegedly committed is not

only heinous but grievous also because it is the father-in-

law who allegedly has subjected the daughter-in-law to

sexual intercourse at such a stage when after

administration of ‘Dhuni’, she had been becoming

unconscious. The prosecution, as noticed supra, has not

only made an effort to persuade this Court to believe its

story as correct but also that such an act by the accused

with the prosecutrix was without her consent and against

her will.

17. The rival submissions as made though have to

be scrutinized in the light of the evidence having come on

record, however, before that I deem it appropriate to

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discuss as to what constitutes the offence punishable

under Section 376 IPC in legal parlance.

.

18. The present in the given facts and

circumstances is a case which falls under first and second

description to Section 375 IPC. The same reads as follows:

“375-Rape. A man is said to commit “rape” who, except
in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of

the six following descriptions:

First:- Against her will.
Secondly:- without her consent.
Thirdly:- xxxx

Fourthly:- xxxx

Fifthly:- xxxx
Sixthly:- xxxx
Explanation:- Penetration is sufficient to constitute

the sexual intercourse necessary to the offence of rape”.

19. What constitutes consent has been discussed

by the Apex Court in Kaini Rajan vs. State of Kerala, JT

2013 (12) SC 538, as follows:

“12. Section 375 IPC defines the expression “rape”,
which indicates that the first clause operates, where the

woman is in possession of her senses, and therefore,
capable of consenting but the act is done against her
will; and second, where it is done without her consent;
the third, fourth and fifth, when there is consent, but it is
not such a consent as excuses the offender, because it is
obtained by putting her on any person in whom she is
interested in fear of death or of hurt. The expression
“against her will” means that the act must have been
done in spite of the opposition of the woman. An
inference as to consent can be drawn if only based on

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evidence or probabilities of the case. “Consent” is also
stated to be an act of reason coupled with deliberation. It

.

denotes an active will in the mind of a person to permit

the doing of an act complained of. Section 90 IPC refers
to the expression “consent”. Section 90, though, does
not define “consent”, but describes what is not consent.

“Consent”, for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance

and moral quality of the act but after having fully
exercised the choice between resistance and assent.
Whether there was consent or not, is to be ascertained
only on a careful study of all relevant circumstances.”

20. The principle settled in the judgment supra,

therefore, is that the prosecutrix was a consenting party to

the sexual intercourse or not can only be ascertained on

careful study of all relevant circumstances. Since the

prosecutrix on the day of her examination i.e. 8.7.2015

had disclosed her age as 27 years, therefore, in the month

of February-March, 2014 when allegedly subjected to

sexual intercourse, she must be 25-26 years of age. It is

now to be seen that the evidence as has come on record is

sufficient to form an opinion that the accused subjected

her to sexual intercourse and if it is so, whether such an

act was without her consent and against her will.

21. In State of Punjab Vs. Gurmeet Singh and

others, AIR 1996 SC 1393, the Apex Court has held that

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the own statement of the prosecutrix if inspires confidence

is sufficient to bring the guilt home to the accused. The

.

apex Court in order to ensure that an innocent person is

not implicated in the commission of an offence of this

nature, while taking note of the judgment in Gurmeet

Singh’s case supra has however diluted the ratio thereof

in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC

635 and held that the statement of prosecutrix cannot be

universally and mechanically applied to the facts of every

case of sexual assault, as in its opinion, in such cases, the

possibility of false implication can’t also be ruled-out.

Similar was the view of the matter taken again by the apex

Court in Vimal Suresh Kamble Vs. Chaluverapinake

Apal S.P. and another, (2003) 3 SCC 175. While

placing reliance on this judgment and the law laid down by

the Apex Court in the judgment supra, this Court in

Criminal Appeal No. 481 of 2009 titled State of

Himachal Pradesh V. Negi Ram, decided on 27th May,

2016 has held as under:

“15. Therefore, the legal position as discussed supra makes
it crystal clear that irrespective of an offence of this nature
not only grievous but heinous also, the Court should not got
swayed merely by passion and influence only on account of
the offence has been committed against a woman and rather
keep in mind the cardinal principle of criminal administration
of justice, that an offender has to be believed to be innocent

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unless and until held guilty by the Court after satisfying its
judicial conscience on the basis of given facts and

.

circumstances of each case as well as proper appreciation of

the evidence available on record.”

22. As per the facts, which are not in controversy,

the prosecutrix got married to Jaspal PW-4 on 8.8.2013.

The said witness had been working in a private company

at Baddi and used to visit his native place intermittently.

The prosecutrix had been living behind with her father-in-

law, the accused and the mother-in-law in the matrimonial

home. The prosecution in order to bring the guilt home to

the accused has placed reliance on the statement of the

prosecutrix PW-10 and her father PW-11. Besides, her

husband PW-4, Pradhan Gram Panchyat Pawan Kumar PW-

2, Ward Panch Sushma Devi PW-3 were also associated.

Learned trial Judge relying upon the sole testimony of the

prosecutrix and on that of her father PW-11 and also the

medical evidence has held the accused guilty and

convicted him. This Court, however, finds that the present

is not a case where the findings of conviction could have

been recorded against the accused on the basis of sole

testimony of the prosecutrix, particularly when she did not

disclose the incident as per her own version till April, 2014

to anyone, including her husband PW-4. Her husband

though denied she having disclosed the episode to him in

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the month of April, 2014. As regards her father PW-11, as

per her own version she informed him in the month of

.

June, 2014 for the first time about the alleged sexual

assault committed by the accused. True it is that the

delay is not always fatal in such cases, but its impact has

to be seen vis-a-vis the facts and circumstances of each

case. Support in this regard can be drawn from the

judgment of the Apex Court in Rajesh Patel V. State of

Jharkhan, AIR 2013 SC 1497. This judgment reads as

follows:

“9. Further, there is an inordinate delay of nearly 11
days in lodging the FIR with the jurisdictional police.
The explanation given by the prosecutrix in not

lodging the complaint within the reasonable period
after the alleged offence committed by the appellant

is that she went to her house and narrated the
offence committed by the appellant to her mother

and on assurance of Purnendu Babu- PW3, the
mother remained silent for two to four days on the

assurance that he will take action in the matter.
Further, the explanation given by the prosecutrix
regarding the delay is that at the time of commission
of offence the appellant had threatened her that in
case she lodges any complaint against him, she would
be killed. The said explanation is once again not a
tenable explanation. Further, the reason assigned by
the High Court regarding not lodging the complaint
immediately or within a reasonable period, it has
observed that in case of rape, the victim girl hardly

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dares to go to the police station and make the matter
open to all out of fear of stigma which will be attached

.

with the girls who are ravished. Also, the reason

assigned by the trial court which justifies the
explanation offered by the prosecution regarding the
delay in lodging the complaint against the appellant

has been erroneously accepted by the High Court in
the impugned judgment. In addition to that, further
observation made by the High Court regarding the

delay is that the prosecutrix as well as her mother
tried to get justice by interference of PW3, who is a
common friend of both of them and PW4, the Doctor
with whom the prosecutrix was working as a Nurse.

When the same did not materialize, after lapse of 11

days, FIR was lodged with the jurisdictional police for
the offence said to have been committed by the
appellant. Further, the High Court has also proceeded

to record the reason that prosecutrix had every
opportunity to give different date of occurrence
instead of 14.2.93 but she did not do it which reason

is not tenable in law. Further, the High Court accepted
the observation made by the learned trial Judge

wherein the explanation given by the prosecutrix in
her evidence about being terrorized to be killed by

the appellant in case of reporting the matter to the
police, is wholly untenable in law. The same is not
only unnatural but also improbable. Therefore, the
inordinate delay of 11 days in lodging the FIR against
the appellant is fatal to the prosecution case. This
vital aspect regarding inordinate delay in lodging the
FIR not only makes the prosecution case improbable
to accept but the reasons and observations made by
the trial court as well as the High Court in the
impugned judgments are wholly untenable in law and

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23

the same cannot be accepted. Therefore, the findings
and observations made by the courts below in

.

accepting delay in lodging the FIR by assigning

unsatisfactory reasons cannot be accepted by this
Court as the findings and reasons are erroneous in
law.”

23. Similar is the law laid down again by the Apex

Court in Ramdas and others V. State of Maharashtra,

AIR 2007 SC 155. The relevant extract of this judgment

is also reproduced as under:-

“23. Counsel for the State submitted that the delay in

lodging the first information report in such cases is

immaterial. The proposition is too broadly stated to
merit acceptance. It is no doubt true that mere delay
in lodging the first information report is not

necessarily fatal to the case of the prosecution.
However, the fact that the report was lodged
belatedly is a relevant fact of which the court must

take notice. This fact has to be considered in the light
of other facts and circumstances of the case, and in a

given case the court may be satisfied that the delay
in lodging the report has been sufficiently explained.

In the light of the totality of the evidence, the court of
fact has to consider whether the delay in lodging the
report adversely affects the case of the prosecution.
That is a matter of appreciation of evidence. There
may be cases where there is direct evidence to
explain the delay. Even in the absence of direct
explanation there may be circumstances appearing
on record which provide a reasonable explanation for
the delay. There are cases where much time is
consumed in taking the injured to the hospital for

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24

medical aid and, therefore, the witnesses find no time
to lodge the report promptly. There may also be

.

cases where on account of fear and threats,

witnesses may avoid going to the police station
immediately. The time of occurrence, the distance to
the police station, mode of conveyance available, are

all factors which have a bearing on the question of
delay in lodging of the report. It is also possible to
conceive of cases where the victim and the members

of his or her family belong to such a strata of society
that they may not even be aware of their right to
report the matter to the police and seek legal action,
nor was any such advice available to them. In the

case of sexual offences there is another consideration

which may weigh in the mind of the court i.e. the
initial hesitation of the victim to report the matter to
the police which may affect her family life and

family’s reputation. Very often in such cases only
after considerable persuasion the prosecutrix may be
persuaded to disclose the true facts. There are also

cases where the victim may choose to suffer the
ignominy rather than to disclose the true facts which

may cast a stigma on her for the rest of her life.
These are case where the initial hesitation of the

prosecutrix to disclose the true facts may provide a
good explanation for the delay in lodging the report.
In the ultimate analysis, what is the effect of delay in
lodging the report with the police is a matter of
appreciation of evidence, and the court must
consider the delay in the background of the facts and
circumstances of each case. Different cases have
different facts and it is the totality of evidence and
the impact that it has on the mind of the court that is
important. No strait jacket formula can be evolved in

27/11/2018 22:57:21 :::HCHP
25

such matters, and each case must rest on its own
facts. It is settled law that however similar the

.

circumstances, facts in one case cannot be used as a

precedent to determine the conclusion on the facts in
another. (See AIR 1956 SC 216 : Pandurang and
others vs. State of Hyderabad). Thus mere delay in

lodging of the report may not by itself be fatal to the
case of the prosecution, but the delay has to be
considered in the background of the facts and

circumstances in each case and is a matter of
appreciation of evidence by the court of fact.”

24. The delay, in the case in hand, to my mind, is

fatal. It appears that nothing of the sort did take place

with the prosecutrix and the accused has been implicated

falsely for some reasons best known to the prosecutrix or

her parents. The prosecution story right from the very

beginning is highly doubtful. Nothing has come on record

as to what was the nature of the disease from which the

prosecutrix was suffering. Though, it has come in her

statement that she was suffering from fever, however, if it

is believed to be true, the same could have been cured in

a much better way by getting medical treatment. Nothing

has come in the prosecution story that she was suffering

from “Opra” (psychological disorder). This story has been

introduced while submitting that it is the accused who

when examined the prosecutrix disclosed that she was

27/11/2018 22:57:21 :::HCHP
26

suffering from “Opra”. Even if the prosecution story is

believed to be true that he administered “Dhuni” to her for

.

few days, nothing specific has come on record qua the

exact duration of such treatment. Even if she was

suffering from any such disease, whether it got cured by

way of administering ‘Dhuni” by the accused for few days,

if not, whether she went for treatment on medical side,

would be

that the

nothing to this effect has also come on record. In such a

situation, the only reasonable and plausible conclusion

prosecutrix neither fell ill nor

administered any treatment by her father-in-law, the

accused. There is nothing on record to suggest that the

accused was a “Chela/Tantrik” and with the help of

supernatural power, having come to know about the

ailments/problems of patients brought to him, suffering

and that after coming to know about the disease he had

been treating his patients with the help of such super

natural powers. The story so invented is, therefore,

palpably false, hence could not have been believed to be

true at all by any stretch of imagination.

25. Admittedly, the prosecutrix was pregnant

because as per her own version, she had conceived the

pregnancy from the lions of her husband PW-4. It seems

27/11/2018 22:57:21 :::HCHP
27

to be not true that the accused asked her either to

accompany him to the hospital for ultrasound test

.

conducted or she will not be allowed to go out of the house

including the place of her parents. Even if the accused

wanted to get her ultrasound conducted and she having

been subjected to sexual intercourse, it is not

understandable as to why she refused for undergoing such

26.

r to
test. This also casts a doubt about the authenticity and

genuineness of the prosecution story.

Interestingly enough, the accused as per the

prosecution story had been subjecting her to sexual

intercourse after she having been becoming unconscious

with the smoke emanating from the items including

herbals being used in that “Dhuni”, however, she could

feel it only during that night when woke up all of sudden

and found herself sleeping in naked condition, whereas,

accused was also sleeping with her. In the considered

opinion of this Court, at the first instance, it is not possible

to commit sexual intercourse with an unconscious lady,

secondly, even if committed, she will definitely come to

know about such an act committed with her immediately

on regaining the consciousness. Such common things

having escaped the notice of learned trial Judge is not only

27/11/2018 22:57:21 :::HCHP
28

disturbing but amazing to this Court. Learned trial Judge

has acted and behaved in a fashion and believed the

.

prosecution case as find mentioned in the police report as

correct, without making any effort to critically analyzing

the whole material available on record.

27. As is noted hereinabove, it is highly doubtful

that the prosecutrix has disclosed the episode to her

husband in the month of April, 2014 and to her mother-in-

law also. Had it been so, they both would have certainly

not tolerated such an act and behaviour of the accused at

all. Even if it is believed that her husband did nothing and

returned to Baddi, she should have not tolerated such

unbecoming behaviour of the accused at all and rather

reported the matter atleast to her parents, if not police or

the Gram Panchayat straightway. There was no occasion

to her to have concealed such a ghastly act on the part of

the accused till June, 2014, had it actually been taken

place.. Even if it is believed to be so, in that event also,

the FIR should have been registered without wasting any

further time. However, the same has been registered in

the month of July i.e. 4.7.2014. If not shocking, it is painful

to point out that in order to implicate father-in-law falsely

without caring that what will be the repercussions thereof

27/11/2018 22:57:21 :::HCHP
29

in the public at large, the FIR was registered after due

deliberation to the reasons best known to the prosecutrix

.

and her father.

28. As per prosecution story, the prosecutrix left

the matrimonial home in the month of May, 2014 and did

not come back. Her husband PW-4 came to the village on

27.06.2014. He went to the Pradhan Gram Panchayat and

also the Ward Panch and requested them to help him by

persuading his wife, the prosecutrix to come back to the

matrimonial home. The Pradhan PW-2, Ward Panch PW-3,

husband of the prosecutrix PW-4 accompanied by his

uncles went to the prosecutrix at her parents’ house. They

intervened and persuaded her to return to the matrimonial

home, however, as per version of Pradhan, Ward Panch

and also that of her husband PW-4, the prosecutrix refused

to return to the matrimonial home. She, according to

them, did not disclose any reason therefor. The

prosecution story that she refused to accompany them to

the matrimonial home at the pretext that she has been

sexually assaulted by the accused, in the manner, as

claimed by the prosecution, has been denied by them

when allowed to be cross-examined by learned Public

Prosecutor. Their testimony that the prosecutrix did not

27/11/2018 22:57:21 :::HCHP
30

disclose any reason of her not accompanying them to the

matrimonial home, however, remained unshattered.

.

29. Though, as per opinion of Dr. Sapna Dhiman,

PW-5, on examination of the prosecutrix, the possibility of

she being subjected to sexual intercourse cannot be ruled-

out. However, if the report of the chemical examiner

Ext.PW-15/H is seen, blood and semen could not be

detected on shirt,

dupatta, salwar, pubic

endocervical swab and on the pubic hair of accused Baldev

Singh. Blood even could not be detected on underwear of
hair and

accused Baldev Singh, however, human semen was

detected on that. Such medical evidence and scientific

investigation got conducted is also of no help in the case in

hand, because the occurrence is of February, 2014,

whereas, she was got medically examined in the month of

July, 2014, therefore, such investigation is merely an eye

wash. Otherwise also, she was a married lady and there is

nothing surprising or important in the opinion of the doctor

because she must be cohabiting with her husband and as

per her own version even carrying the pregnancy also from

his lions.

30. The evidence as has come on record by way of

the official witnesses as discussed hereinabove could have

27/11/2018 22:57:21 :::HCHP
31

been used as link evidence, had the prosecution been

otherwise able to prove its against the accused beyond all

.

reasonable doubt.

31. Therefore, the close scrutiny of the evidence,

in the manner as aforesaid amply demonstrates that the

prosecutrix and for that matter her father to the reasons

best known to them have implicated falsely the accused in

this case and thereby if not totally destroyed the social

fibre has certainly weakened it and also put a big question

mark on the pious relations between a father-in-law and

daughter-in-law. Additionally, the prosecution story which

in the opinion of this Court has been engineered and

fabricated has culminated in a discussion that a father-in-

law can also assault sexually his own daughter-in-law.

32. In a Division Bench judgment authored on

22.09.2017 by me in Criminal Appeal No. 31 of 2017 titled

Vivek Singh V. State of H.P., a case having more or less

similar facts, it is observed as under:-

“35. Before parting, we would be failing in our
duty if not point out the overall conduct of the
Investigating Agency which has implicated the accused
in a false case on the basis of highly interested
evidence i.e. the only statement of complainant who
was not only inimical to the accused but also to other
members of his family. Her mother PW-2 Chino Devi,
though helped her daughter, the complainant in

27/11/2018 22:57:21 :::HCHP
32

getting the accused booked falsely, however,
unsuccessfully. Any how, we leave it open to high ups

.

in police department to take steps as warranted to

sensitize the officers/I.Os so that any such instance
does not reoccur.

36. Learned trial Judge has also failed to
appreciate the evidence in its right perspective and
swayed only by the severity of the allegations and the
alleged incident of rape with a minor below two years

of age by none else but allegedly her father. Since the
allegations leveled against the accused were highly
sensitive having repercussions in the society as a

whole, an onerous duty was cast upon learned trial

Judge to have examined the given facts and
circumstances of the case and also evidence available
on record with all circumspection and more care and

caution. Due to such an approach in the matter, pious
relations between a father and daughter got
tarnished. We hope and trust that in a case of this

nature, the Investigators, Prosecutors and
Adjudicators shall discharge their respective duties in

the light of the principles we settled in this judgment
and also in accordance with law. With the above

observations, the appeal is finally disposed of.”

33. In this case also, neither the investigating agency

has made an effort to separate grain from the chaff nor the

I.O. made any effort to find out the truth and to the

contrary investigated the matter as usual and in a routine

manner to implicate the accused in this case by hook and

27/11/2018 22:57:22 :::HCHP
33

crook with the result that he has been convicted and

sentenced, as pointed out at the very out set.

.

34. Being so, the findings recorded against the

accused are neither legally nor factually sustainable. The

impugned judgment, as such, does not stand the test of

judicial scrutiny, hence, deserves to be quashed and set

aside.

35.

In view of what has been said hereinabove, this

appeal succeeds and the same is accordingly allowed.

Consequently, the impugned judgment is quashed and set

aside and the accused is acquitted of the charge framed

under Section 376 and 506 IPC. He presently is

undergoing sentence, therefore, if not required in any

other case, be set free forthwith. The release warrant be

prepared accordingly. The fine amount as imposed upon

the accused, if deposited, shall be refunded to him against

proper receipt.

(Dharam Chand Chaudhary)
Judge

November 26, 2018
(naveen)

27/11/2018 22:57:22 :::HCHP

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