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Tilak Raj vs State Of Himachal Pradesh on 6 January, 2016

            
|Non-REPORTABLE           |



               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 13  OF 2016
            (Arising out of SLP(Crl.) No.4896 of 2015)



TILAK RAJ                         … APPELLANT

                            Versus


THE STATE OF HIMACHAL PRADESH     … RESPONDENT




                       J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

This criminal appeal is directed against the impugned judgment and order
dated 06.01.2015 passed by the High Court of Himachal Pradesh at Shimla in
Criminal Appeal No. 369 of 2012 whereby it has partly allowed the said
Criminal Appeal filed by the respondent-State and has upheld the acquittal
order passed by the trial court in favour of the appellant herein for the
offence punishable under Section 376 of Indian Penal Code (for short
“IPC”). However, it has convicted the appellant for offences punishable
under Sections 417 and 506 part I of IPC but instead of imposing sentence
on the appellant for the aforesaid offences, vide order dated 17.03.2015
the High Court has released him under Section 4 of the Probation of
Offenders Act, 1958 on his entering into a personal bond in the sum of Rs.
25,000/- with two sureties in the like amount.

Brief facts of the case are stated hereunder to appreciate the rival legal
contentions urged on behalf of the parties:

On 06.01.2010, the Assistant Sub-inspector of Police (ASI), Chamba (H.P.)
received a complaint from prosecutrix through the office of Deputy
Superintendent of Police (DSP), Shri. K.D. Sharma, Chamba (H.P). In the
said complaint, it was alleged by her that on 01.01.2010 she was raped and
physically assaulted by the appellant. It was also alleged by her that when
she went to the police station to register her complaint regarding the
offence of rape she was threatened with dire consequences by the appellant
on phone. Allegation of sexual exploitation on the pretext of marriage was
also made by her in the said complaint.

On the basis of said written complaint FIR No. 6 of 2010 was registered by
the ASI under Sections 376, 417 and 506 of IPC and investigation was
conducted by the investigation officer. After investigation a report under
Section 173 of Code of Criminal Procedure, 1973 was filed.

The case of the prosecution is that the appellant developed intimacy with
the prosecutrix (PW 2) about two years prior to the incident. He allured
her on the pretext of marriage. On 01.01.2010 the appellant sexually
violated the person of prosecutrix in her residential accommodation in
Karian, Chamba. At the same time, he not only ravished her but also
physically assaulted her by slapping her and twisting her arm.

On the next day i.e., on 02.01.2010, the prosecutrix decided to approach
the Police Station, Chamba to get FIR registered against the appellant for
the offence of rape. However, at about 6 AM when she reached near Police
Station the appellant threatened her against making any complaint or report
about him to the police officials otherwise he would kill the prosecutrix.
Thereafter, she did not make any complaint.

On the same day, the appellant met prosecutrix near the Regional Hospital,
Chamba and offered to take her to his home. He persuaded her not to lodge
FIR against him and even promised in writing to marry her. He assured her
that both of them would stay as husband and wife. However, instead of
taking her to his house he dropped her at her residence with a promise that
he would return soon. The appellant did not return thereafter. Feeling
cheated thereby, on the same day, she reported the matter to Sh. K.D.
Sharma, DSP, Chamba.

On 05.01.2010, both the appellant and the prosecutrix were called in the
office of DSP, wherein the appellant agreed in presence of DSP, Chamba and
one Yoginder Mohan (PW 3) to marry the prosecutrix the next day i.e., on
06.01.2010. On 06.01.2010, when the prosecutrix along with her family came
forward for solemnization of marriage, the appellant did not turn up. The
same day FIR No. 06 of 2010 was registered against the appellant. He was
booked for the offences punishable under Sections 376, 417 and 506 of IPC.

The Court of Sessions, Chamba in sessions trial no. 40 of 2010, after
examination of the evidence on record, vide its judgment and order dated
30.04.2012 acquitted the appellant-accused of all the charges levelled
against him by giving him a benefit of doubt.

Aggrieved by the decision of the trial court, the respondent-State
preferred Criminal Appeal No. 369 of 2012 before the High Court of Himachal
Pradesh, at Shimla urging various grounds and prayed for setting aside the
judgment and order of acquittal passed by the trial court and prayed to
convict and sentence the accused-appellant for the charges levelled against
him.

The High Court partly allowed the said Criminal Appeal. It upheld the
acquittal order passed by the trial court in favour of the appellant for
the offence punishable under Section 376 of IPC. However, it convicted him
for the offences punishable under Sections 417 and 506 part I of IPC. The
High Court instead of imposing sentence on the appellant for the aforesaid
offences released him under Section 4 of the Probation of Offenders Act,
1958 on his entering into a personal bond in the sum of Rs. 25,000/- with
two local sureties in the like amount. Hence, this appeal.

Mr. Aditya Dhawan, the learned counsel for the appellant contended that the
High Court has failed to appreciate the facts of the case in actual and
correct perspective and its judgment is based on surmises and conjectures.
Therefore, the order of conviction and sentence is liable to be set aside
by this Court in exercise of its appellate jurisdiction.

He further contended that the High Court has partly set aside a reasoned
judgment passed by the trial court without proper re-appreciation of
evidence on record and facts and circumstances of the case in hand. It was
further submitted by him that in an appeal against acquittal, the
interference by the Appellate Court is not warranted in the absence of
perversity of the finding of fact in the judgment of the trial court.
Furthermore, it is well settled position of law that if two plausible views
are possible on the basis of evidence on record, the appellate court shall
not exercise its appellate jurisdiction to set aside the order of acquittal
unless the findings of the trial court on the charge of offences under
Sections 417 and 506 Part I of IPC are found erroneous.

It was further contended by him that the High Court has failed to take note
of important fact that there is a considerable and unexplained delay of
five days in lodging the FIR against the appellant. Further, the non-
examination of crucial witness namely Sh. K.D.Sharma, DSP, Chamba to whom
the alleged incidence was first reported by the prosecutrix certainly
rendered the prosecution case doubtful. In view of the above, he submitted
that the prosecution ought to have examined Sh. K.D.Sharma, DSP, Chamba who
was a material witness. He further contended that the High Court has failed
to appreciate that the trial court was right in drawing an adverse
inference from non-examination of a crucial witness in the case.

He further vehemently contended that the High Court has failed to
appreciate certain facts, namely, the age of the prosecutrix at the time of
incident was about 40 years i.e., approximately 10 years more than that of
the appellant. Further, she was a government servant at the time of
incident and in number of cases she was appointed as protection officer
under the Protection of Women from Domestic Violence Act, 2005. Further,
the prosecutrix was in relationship with the appellant for about two years
prior to the alleged incident. All the aforesaid facts render the
prosecution version completely unbelievable that the appellant established
physical intimacy with the prosecutrix on the false pretext of marriage.
Therefore, the impugned judgment and order is liable to be set aside by
this Court.

It was further contended by him that the evidence of the prosecutrix is not
clear and specific and the same is suffering from material inconsistencies
and contradictions with other evidence on record. He further submitted that
the discrepancies in the evidence of the prosecutrix is incompatible with
the credibility of his version is liable to be outrightly rejected by this
Court.

While concluding his submissions the learned counsel submitted that there
is no evidence on record to suggest that the appellant on the false pretext
of marriage with the prosecutrix and in furtherance of his intention from
the very beginning induced her to surrender to him for sexual intercourse.
Further, the conviction of the appellant is based only on the testimony of
the prosecutrix (PW 2), which in itself could not have been relied upon by
the High Court in absence of any corroboration. Thus, the impugned judgment
and order of the High Court is vitiated in law and is required to be set
aside by this Court.

Per contra, Mr. Suryanarayana Singh, the learned Additional Advocate
General on behalf of the respondent-State sought to justify the impugned
judgment and order passed by the High Court on the ground that the same is
well founded and is not vitiated in law. Therefore, no interference with
the impugned Judgement and Order of this Court is required in exercise of
its appellate jurisdiction.

We have carefully heard both the parties at length and have also given our
conscious thought to the material on record and relevant provisions of The
Indian Penal Code
(in short “the IPC”). In the instant case, the
prosecutrix was an adult and mature lady of around 40 years at the time of
incident. It is admitted by the prosecutrix in her testimony before the
trial court that she was in relationship with the appellant for the last
two years prior to the incident and the appellant used to stay overnight at
her residence. After a perusal of copy of FIR and evidence on record the
case set up by the prosecutrix seems to be highly unrealistic and
unbelievable.

The evidence as a whole including FIR, testimony of prosecutrix and MLC
report prepared by medical practitioner clearly indicate that the story of
prosecutrix regarding sexual intercourse on false pretext of marrying her
is concocted and not believable. In fact, the said act of the Appellant
seems to be consensual in nature. The trial court has rightly held thus:
“23. If the story set up by the prosecutrix herself in the court is to be
believed, it does come to the fore that the two were in a relationship and
she well knew that the accused was duping her throughout. Per the
prosecutrix, she had not succumbed to the proposal of the accused. Having
allowed access to the accused to her residential quarter, so much so, even
having allowed him to stay overnight, she knew the likely outcome of her
reaction. Seeing the age of the prosecutrix which is around 40 years, it
can be easily inferred that she knew what could be the consequences of
allowing a male friend into her bed room at night.

24. The entire circumstances discussed above and which have come to the
fore from the testimony of none else but the prosecutrix, it cannot be said
that the sexual intercourse was without her consent. The act seems to be
consensual in nature.

25. It is also not the case that the consent had been given by the
prosecutrix believing the accused’s promise to marry her. For, her
testimony itself shows that the entire story of marriage has unfolded after
05.01.2010 when the accused was stated to have been summoned to the office
of the Dy. S.P. Prior to 05.01.2010, there is nothing on record to show
that the accused had been pestering the prosecutrix for any alliance. The
prosecutrix has said a line in her examination-in-chief, but her cross-
examination shows that no doubt the two were in relationship, but the
question of marriage apparently had not been deliberated upon by any of the
two. After the sexual contact, come talk about marriage had cropped up
between the two. Thus, it also cannot be said that the consent for sexual
intercourse had been given by the prosecutrix under some misconception of
marriage.”

As far as conviction of the appellant under Sections 417 and 506 part I of
IPC is concerned, a close scrutiny of evidence of the prosecutrix (PW 2)
along with other prosecution witnesses is done by this Court. Section
417 of IPC prescribes punishment for the offence of Cheating as defined
under Section 415 of IPC. Section 415 of IPC reads thus:

“415. Cheating.—Whoever, by deceiving any person, fraudulently or
dishonestly induces the person so deceived to deliver any property to any
person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything
which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in
body, mind, reputation or property, is said to “cheat”. Explanation.—A
dishonest concealment of facts is a deception within the meaning of this
section.”

The ingredients required to constitute the offence of Cheating have been
discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under:
“(i) there should be fraudulent or dishonest inducement of a person by
deceiving him;

(ii)(a) the person so deceived should be induced to deliver any property to
any person, or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to
do anything which he would not do or omit if he were not so deceived; and

(iii) in cases covered by (ii)(b), the act or omission should be one which
causes or is likely to cause damage or harm to the person induced in body,
mind, reputation or property.”

A careful reading of evidence on record clearly shows that there is no
evidence against the appellant from which it can be conclusively inferred
by this Court that there was any fraudulent or dishonest inducement of the
prosecutrix by the appellant to constitute an offence under Section 415 of
IPC. For conviction of the Appellant for above said offence, it is
important that all the necessary ingredients constituting an offence under
the said Section must be proved beyond reasonable doubt. In the instant
case, the appellant cannot be convicted for the offence of cheating
punishable under Section 417 of IPC as the prosecution has failed to prove
all ingredients of the said offence beyond reasonable doubt.

22. Further, Section 506 of IPC prescribes punishment for the offence of
criminal intimidation as defined under Section 503 of IPC. Section 503 of
IPC reads thus:

“503. Criminal intimidation.—Whoever threatens another with any injury to
his person, reputation or property, or to the person or reputation of any
one in whom that person is interested, with intent to cause alarm to that
person, or to cause that person to do any act which he is not legally bound
to do, or to omit to do any act which that person is legally entitled to
do, as the means of avoiding the execution of such threat, commits criminal
intimidation. Explanation.—A threat to injure the reputation of any
deceased person in whom the person threatened is interested, is within this
section.”

A reading of evidence on record in the light of aforesaid legal provision
shows the insufficiency of evidence to hold the conviction of the appellant
for the offence of criminal intimidation punishable under Section 506 part
I of IPC.

23. From the aforesaid, it is clear that the evidence of the prosecution is
neither believable nor reliable to bring home the charges leveled against
the appellant. We are of the view that the impugned judgment and order
passed by the High Court is not based on a careful re-appraisal of the
evidence on record by the High Court and there is no material evidence on
record to show that the appellant is guilty of the charged offences i.e.,
offence of cheating punishable under Section 417 of IPC and offence of
criminal intimidation punishable under Section 506 part I of IPC.

24. For the reasons stated supra, this appeal is allowed and we set aside
the impugned judgment and order of conviction and sentence passed by the
High Court against the appellant for the offences punishable under
Sections
417 and 506 part I of IPC. The appellant is acquitted of all the charges
levelled against him.

……………………………………………………CJI.

[T.S. THAKUR]

…………………………………………………………J.

[V. GOPALA GOWDA]

New Delhi,
January 6, 2016

———————–

[1]
[2] (1970) 2 SCC 740

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