SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

State Of H.P vs Shashi Pal on 17 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

Cr. Appeal No. 409 of 2012
Reserved on: 09.08.2018
Decided on : 17.08.2018.

.

State of H.P. …..Appellant

Versus

Shashi Pal ….Respondent

Coram:

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

Whether approved for reporting?1 No.

For the Appellant:

r to
Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs. with Mr. J. S.

Guleria and Mr. Bhupinder Thakur, Dy.

A.Gs.

For the respondent: Mr. Arjun K. Lall, Legal-aid-Counsel.

Justice Tarlok Singh Chauhan, Judge

State aggrieved by the judgment of acquittal passed by

the learned Additional Sessions Judge (II), Kangra at Dharamshala,

Distt. Kangra, H.P. in Sessions Trial No. 44 of 2011, on 07.05.2012 ,

whereby the respondent has been acquitted of the offences

punishable under Sections 376 and 506 of the Indian Penal Code,

has filed the instant appeal.

2. The prosecution story, in brief, is that the prosecutrix

was studying in 10+1 in KFC School Model Town, Pathankot. On

22.08.2009, at 2: 00 p.m., when the prosecutrix coming from her

school was called by her aunt as her aunt was unwell. The
1
Whether reporters of the local papers may be allowed to see the judgment? yes

17/08/2018 23:03:21 :::HCHP
…2…  

respondent was also present there when the aunt of the prosecutrix

.

asked her to clean utensils. It was alleged that respondent took the

prosecutrix inside the room and committed forcible sexual

intercourse with her. The respondent had been promising the

prosecutrix to marry her and under this pretext he had been

committing sexual intercourse with her for the past quite some time.

After committing sexual intercourse with the prosecutrix, the

respondent threatened her to do away with her life and also beat

her. The prosecutrix narrated the occurrence to her mother and

consequently the matter was reported to the police and the FIR was

registered. The medical examinations of the prosecutrix as well as

the respondent were got conducted by the police.

3. During investigation, the clothes, vaginal slide and pubic

hair etc. were sent to chemical examination. The birth certificate of

the prosecutrix was obtained from the school. The spot map of the

place where the respondent alleged to have committed the offence

was prepared. The police also recovered one bed-sheet and took

photographs of the room, which was got identified from the

respondent.

4. On conclusion of the investigation, police presented

challan and on finding a prima facie case, the respondent was

charged with the offence punishable under Sections 376 and 506 of

the IPC.

17/08/2018 23:03:21 :::HCHP

…3…  

5. The prosecution examined as many as 13 witnesses and

.

thereafter the statement of the respondent under Section 313

Cr.P.C. was recorded wherein he pleaded innocence and stated that

prosecutrix wanted to marry her and since he refused, he has been

falsely implicated in this case. Opportunity was given to respondent

to lead evidence and in his defence he produced one certificate

from the school of the prosecutrix to show that on the date of

alleged incident the name of the prosecutrix had been struck off

from the rolls of the school.

6. The learned trial Court after evaluating the evidence

available on record, acquitted the respondent of the offences

punishable under Sections 376 and 506 of the Indian Penal Code

vide judgment dated 07.05.2012, constraining the State to file the

instant appeal.

We have heard the learned counsel for the parties and

have gone through the record of the case carefully.

7. It is now well settled principle of law that conviction can

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

are compelling reasons for seeking corroboration. It is also equally

settled that corroboration as a condition for judicial reliance on the

testimony of the prosecutrix is not a requirement of law but a

guidance of prudence under the given circumstances. (Refer State

of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, State of

17/08/2018 23:03:21 :::HCHP
…4…  

Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381, Rajinder

.

Vs. State of Himachal Pradesh, (2009) 16 SCC 69.) However, it

has to be borne in mind that a case of sexual assault has to be

proved beyond reasonable doubt as any other case and there is no

presumption that the prosecutrix would always tell the entire story

truthfully.

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

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

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

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

“9. The aforesaid judgments lay down the basic principle
that ordinarily the evidence of a prosecutrix should not be

suspect and should be believed, the more so as her
statement has to be evaluated at par with that of an injured

witness and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid observations must

carry the greatest weight and we respectfully agree with
them, but at the same time they cannot be universally and
mechanically applied to the facts of every case of sexual

assault which comes before the Court. It cannot be lost sight
of that rape causes the greatest distress and humiliation to
the victim but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the accused
as well. The accused must also be protected against the
possibility of false implication, particularly where a large
number of accused are involved. It must, further, be borne in
mind that the broad principle is that an injured witness was
present at the time when the incident happened and that
ordinarily such a witness would not tell a lie as to the actual

17/08/2018 23:03:21 :::HCHP
…5…  

assailants, but there is no presumption or any basis for

.

assuming that the statement of such a witness is always

correct or without any embellishment or exaggeration.
Reference has been made in Gurmit Singh’s case to the
amendments in 1983 to Sections 375 and 376 of the India

Penal Code making the penal provisions relating to rape
more stringent, and also to Section 114A of the Evidence Act
with respect to a presumption to be raised with regard to
allegations of consensual sex in a case of alleged rape. It is

however significant that Sections 113A and 113B too were
inserted in the Evidence Act by the same amendment by
which certain presumptions in cases of abetment of suicide

and dowry death have been raised against the accused.

These two Sections, thus, raise a clear presumption in favour
of the prosecution but no similar presumption with respect to
rape is visualized as the presumption under Section 114A is

extremely restricted in its applicability. This clearly shows
that in so far as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of an

injured witness whose presence at the spot is probable but it
can never be presumed that her statement should, without

exception, be taken as the gospel truth. Additionally her
statement can, at best, be adjudged on the principle that

ordinarily no injured witness would tell a lie or implicate a
person falsely. We believe that it is under these principles
that this case, and others such as this one, need to be
examined.”

9. In Tameezuddin @ Tammu Vs. State (NCT of Delhi),

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

“7. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story is

17/08/2018 23:03:21 :::HCHP
…6…  

improbable and belies logic, would be doing violence to the

.

very principles which govern the appreciation of evidence in

a criminal matter. We are of the opinion that story is indeed
improbable. …..”

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

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

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

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

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

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

the present matter is indeed an exceptional one.”

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

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

“5. We are however, of the opinion that the involvement of
Abbas Ahmad Choudhary seems to be uncertain. It must first

be borne in mind that in hery statement recorded on 17th
September, 1997, the prosecutrix had not attributed any rape
to Abbas Ahmad Choudhary. Likewise, she had stated that he
was not one of those who kidnapped her and taken to
Jalalpur Tea Estate and on the other hand she categorically
stated that while she along with Mizazul Haq and Ranju Das
were returning to the village that he had joined them
somewhere along the way but had still not committed rape
on her. It is true that in her statement in court she has
attributed rape to Abbas Ahmad Choudhary as well, but in

17/08/2018 23:03:21 :::HCHP
…7…  

the light of the aforesaid contradictions some doubt is

.

created with regard to his involvement. Some corroboration

of rape could have been found if Abbas Ahmad Choudhary
too had been apprehended and taken to the police station by
P.W. 5 -Ranjit Dutta the Constable. The Constable, however,

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

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

the appellants had been apprehended by Constable Ranjit

Dutta. We are, therefore, of the opinion that the involvement
of Abbas Ahmad Choudhary is doubtful. We are conscious of
the fact that in a matter of rape, the statement of the

prosecutrix must be given primary consideration, but, at the
same time, the broad principle that the prosecution has to
prove its case beyond reasonable doubt applies equally to a

case of rape and there can be no presumption that a
prosecutrix would always tell the entire story truthfully.”

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

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

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

made basis to convict the accused and it was held:-

“15. In our considered opinion, the sterling witness should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version
of such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and

17/08/2018 23:03:21 :::HCHP
…8…  

what would be relevant is the truthfulness of the statement

.

made by such a witness. What would be more relevant would

be the consistency of the statement right from the starting
point till the end, namely, at the time when the witness
makes the initial statement and ultimately before the Court.

It should be natural and consistent with the case of the
prosecution qua the accused. There should not be any
prevarication in the version of such a witness. The witness
should be in a position to withstand the cross-examination of

any length and howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as,

the sequence of it. Such a version should have correlation

with each and everyone of other supporting such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion.

The said version should consistently match with the version
of every other witness. It can even be stated that it should be
akin to the test applied in the case of circumstantial evidence

where there should not be any missing link in the chain of
circumstances to hold the accused guilty of the offence

alleged against him. Only if the version of such a witness
qualifies the above test as well as all other similar such tests

to be applied, it can be held that such a witness can be called
as a sterling witness whose version can be accepted by the
Court without any corroboration and based on which the
guilty can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the Court
trying the offence to rely on the core version to sieve the
other supporting materials for holding the offender guilty of
the charge alleged.”

17/08/2018 23:03:21 :::HCHP

…9…  

13. In State of Madhya Pradesh vs. Munna alias

.

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

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

age, cannot be termed to be rape.

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

that the prosecution in this case was above 16 years and that fact

stands duly established on record. In fact, the prosecutrix herself

stated that her date of birth to be 22.04.1992, which means that at

the time of alleged incident she was more than 16 years of age.

15. The prosecution has examined PW6 Dr. Raman Sharma,

who conducted the X-ray of the prosecutrix vide films Ex.P/1 to

Ex.P/6 and opined that the radiological age of the prosecutrix was

16 ½ to 17 ½ years as per his opinion Ex.PW6/A. He also admitted

that the radiological age made differ to the extent of two years on

either side. So the prosecutrix could be more than 18 years at the

relevant time.

16. Now one thing is clear that the prosecutrix definitely

was more than 16 years on the alleged date of occurrence. Since

the age of the prosecutrix stands determined to be more than 16

years, then as per the ratio of the judgment rendered by the Hon’ble

Supreme Court in Munna alias Shambhoo Nath’s case (supra),

wherein it is held that in case there is consensual physical

17/08/2018 23:03:21 :::HCHP
…10…  

relationship between the prosecutrix and the respondent, then the

.

same cannot be termed to be rape.

17. In order to determine this question, it would be

necessary to first advert to the specific case set up by the

prosecution. Prosecutrix while appearing as PW7 deposed that on

22.08.2009, when she was coming from her school, where she was

claiming to be studying in 10+1, her aunt called her. On the other

hand, the specific case set up by the respondent was that on the

relevant date the prosecutrix was not even studying in the school as

her name had already struck off from the rolls of the school. To this

effect the respondent has produced in evidence the certificate Ext.

DX issued by the Principal of the school, which reveals that the

name of the prosecutrix was struck off from the rolls of the school

on 20.08.2009.

18. In the given circumstance, we really fail to understand

as to why and how the prosecutrix had been coming back from the

school on 22.08.2009 when the occurrence is alleged to have been

taken place. Therefore, in such circumstances, the testimony of the

prosecutrix becomes highly doubtful. However, even this aspect of

the case is ignored, there is sufficient evidence available on record

to indicate that the prosecutrix had already established physical

contact with the respondent much prior to the incident.

17/08/2018 23:03:21 :::HCHP

…11…  

19. The prosecutrix in her cross-examination has candidly

.

admitted that she had gone several times to the house of the

respondent, where the respondent had been committing sexual

intercourse with her under promise to marry her.

20. Not only this, she further deposed that once she even

got pregnant and it was the respondent who had got her abortion

done from Dr. Vinay Sharma at Pathankot. Though there is no

convincing evidence on record, as rightly observed by the learned

Sessions Judge, with regard to the abortion, but nonetheless the fact

remains that the prosecutrix and respondent were involved in

physical relationship. According to the prosecutrix, she wanted to

marry the respondent but the respondent was having friendship with

some other girl. The prosecutrix had admitted that she had written

letters Ext. D1 and Ext. D2 to the respondent. The contents whereof

disclose that the prosecutrix was in love with the respondent and,

therefore, entered into physical relationship with him. Learned

Sessions Judge has found the prosecutrix to be mature enough at

the time of the incident, having full capacity to understand the

nature of the act and, thus, arrived at a conclusion that the physical

relationship between the prosecutrix and the respondent was

consensual and, therefore, did not amount to rape.

21. We really see no reason to differ from the said finding

for the simple reason that not only the prosecutrix and the

17/08/2018 23:03:21 :::HCHP
…12…  

respondent had been indulging in consensual sex, even if the story

.

of the prosecution, as has been set out in this case, is to be

believed, there is no reason forth coming as to why the prosecutrix

did not raise any hue and cry in order to attract the attention of the

neighbour, especially when the occurrence is alleged to have been

taken place at 2:00 p.m. in broad day light, that too, when her aunt

was very much in the house.

22. In addition thereto, even the medical evidence proves

that there was no injury on any parts of the body of the prosecutrix

including the private part.

23. As regards the case of the prosecution with respect to

criminal intimidation, as discussed above, the evidence on record

clearly not only suggest but clearly proves that the prosecutrix

remained in the company of the respondent out of her free will and

volition, therefore, there is no question of any intimidation on the

part of the respondent.

24. As regards the other witnesses examined in this case, it

would be noticed that PW8 and PW9 are the parents of the

prosecutrix and their testimonies being based on hearsay is really of

no value.

25. PW2 Dr. Tina Gupta has medically examined the

respondent vide MLC Ex. PW2/B to prove that at the relevant time

the respondent was capable of performing sexual act. However, the

17/08/2018 23:03:21 :::HCHP
…13…  

medical officer did not find any evidence of recent sexual

.

intercourse.

26. PW4 MHC Vinod, Police Station, Indora, proved that he

had sent the three sealed parcels to FSL, Junga, through HHC

Rakshpal and this fact was also deposed by HHC Rakshpal, who

appeared as PW11. PW5 HC Rajesh Kumar, who is the other MHC

deposed that LC Anjana Kumari has deposited with him one sealed

parcel alongwith one envelope addressed to FSL Junga. He further

deposed that on 23.08.2009, S.I. Chattar Singh had deposited with

him two other sealed parcels. PW10 Balwinder Singh proved the

recoovery of bed-sheet Ex.P2 vide recovery memo Ext.PW7/B.

27. Investigating Officer Chatter Singh appeared as PW12

and deposed that on 22.08.2009 FIR Ext.PW7/A was registered in

this case. He had moved an application Ext.PW1/A for medical

examination of the prosecutrix and sent prosecutrix with L.C. Anjna

Kumari for medical examination and obtained her MLC.

28. The other witnesses are mainly government servants,

however, their testimonies are not at all relevant as we have already

concluded that no offence of rape is made out. We have already

held that the instant is a case of consensual sex and therefore,

cannot be termed to be rape.

29. That apart, we have already observed that since the

prosecutrix had remained in the company of the respondent out of

17/08/2018 23:03:21 :::HCHP
…14…  

her free will and volition, therefore, no case of criminal intimidation

.

is also made out.

30. Lastly, we were informed at the Bar that as a matter of

fact, the prosecutrix and respondent after the alleged incident have,

in fact, got married to each other and the prosecutrix is now

expecting her child. In the given circumstances, any further

discussion in the matter, would only amount to embarrassing the

prosecutrix and the respondent who appeared to be happily

married.

31. Having said so, we find no merit in this appeal and the

same is accordingly dismissed. Bail bonds, if any, furnished by the

respondent are ordered to be discharged.

(Tarlok Singh Chauhan)
Judge

(Chander Bhusan Barowalia)
Judge

17.08.2018
(sanjeev)

17/08/2018 23:03:21 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh