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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