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.
27/11/2018 22:57:21 :::HCHP
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
27/11/2018 22:57:21 :::HCHP
3
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
27/11/2018 22:57:21 :::HCHP
4
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
27/11/2018 22:57:21 :::HCHP
5
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
27/11/2018 22:57:21 :::HCHP
6
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-
27/11/2018 22:57:21 :::HCHP
7
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,
27/11/2018 22:57:21 :::HCHP
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
27/11/2018 22:57:21 :::HCHP
9
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
27/11/2018 22:57:21 :::HCHP
10
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
27/11/2018 22:57:21 :::HCHP
11
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
27/11/2018 22:57:21 :::HCHP
12
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
27/11/2018 22:57:21 :::HCHP
13
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:
27/11/2018 22:57:21 :::HCHP
14
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
27/11/2018 22:57:21 :::HCHP
15
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
27/11/2018 22:57:21 :::HCHP
16
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
27/11/2018 22:57:21 :::HCHP
17
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 ofthe 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 thewoman 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 on27/11/2018 22:57:21 :::HCHP
18evidence 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 significanceand 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
27/11/2018 22:57:21 :::HCHP
19
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 innocent27/11/2018 22:57:21 :::HCHP
20unless 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
27/11/2018 22:57:21 :::HCHP
21
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 notlodging the complaint within the reasonable period
after the alleged offence committed by the appellantis that she went to her house and narrated the
offence committed by the appellant to her motherand on assurance of Purnendu Babu- PW3, the
mother remained silent for two to four days on theassurance 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 hardly27/11/2018 22:57:21 :::HCHP
22dares 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 appellanthas been erroneously accepted by the High Court in
the impugned judgment. In addition to that, further
observation made by the High Court regarding thedelay 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 proceededto 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 reasonis not tenable in law. Further, the High Court accepted
the observation made by the learned trial Judgewherein the explanation given by the prosecutrix in
her evidence about being terrorized to be killed bythe 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 and27/11/2018 22:57:21 :::HCHP
23the 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 notnecessarily fatal to the case of the prosecution.
However, the fact that the report was lodged
belatedly is a relevant fact of which the court musttake notice. This fact has to be considered in the light
of other facts and circumstances of the case, and in agiven 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 for27/11/2018 22:57:21 :::HCHP
24medical 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, areall 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 membersof 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 thecase 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 andfamily’s reputation. Very often in such cases only
after considerable persuasion the prosecutrix may be
persuaded to disclose the true facts. There are alsocases where the victim may choose to suffer the
ignominy rather than to disclose the true facts whichmay cast a stigma on her for the rest of her life.
These are case where the initial hesitation of theprosecutrix 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 in27/11/2018 22:57:21 :::HCHP
25such 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 inlodging 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 andcircumstances 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 in27/11/2018 22:57:21 :::HCHP
32getting 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 yearsof age by none else but allegedly her father. Since the
allegations leveled against the accused were highly
sensitive having repercussions in the society as awhole, 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 andcaution. 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 thisnature, the Investigators, Prosecutors and
Adjudicators shall discharge their respective duties inthe light of the principles we settled in this judgment
and also in accordance with law. With the aboveobservations, 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