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Vikram Singh Alias Vicky vs State Of Himachal Pradesh on 2 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 367 of 2016

.

Reserved on: 26.03.2018.

Date of decision: 02.04.2018

Vikram Singh alias Vicky …Appellant

Versus

State of Himachal Pradesh …Respondent.

Coram

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

Whether approved for reporting?1 No.

For the petitioner : Mr. Aman Sood, Advocate, Legal-

aid-Counsel.

For the respondent : Mr. Vinod Thakur and Mr. Sudhir

Bhatnagar, Addl. A.Gs. with Mr.
Bhupinder Thakur, Dy. A.G.

Justice Tarlok Singh Chauhan, Judge

This appeal by the appellant seeks to challenge the

judgment and order of conviction passed by the learned Special

Judge, Sirmaur District at Nahan, H.P., whereby the appellant was

convicted and sentenced to undergo rigorous imprisonment for

seven years and to pay a fine of Rs.5000/- and in default of

payment of fine, to undergo simple imprisonment for one month

under Section 376(1) IPC and further directed to undergo

rigorous imprisonment for two years and to pay a fine of Rs.

1
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.

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2

5,000/- and in default of payment of fine to undergo simple

imprisonment for one month under Section 3(1)(xi) of the SC ST

.

Act.

2. Briefly stated the case of the prosecution is that the

father of the prosecutrix PW2 Satya Ram came to the police

station and got registered FIR No. 46 of 2014 on 18.12.2014,

alleging therein that prosecutirx aged about 16 years, who was

studying in 8th class had left home alongwith some unknown

person on 16.12.2014 and thereafter her whereabouts were not

known and he suspected that she may have been kidnapped by

someone after giving allurement. It was further stated that he

had received a telephonic call from his elder daughter Pooja

(PW3) that she had received a phone call from the prosecutrix,

who was weeping and this call was made from Mobile

No.080532-05738.

3. The police swung into action and traced the location

of the mobile phone near Ismailabad, District Kurukshetra,

Haryana. After constituting a police team, the prosecutrix

alongwith the appellant were recovered at Ismailabad on

20.12.2014. It was revealed during investigation that the

prosecutrix alongwith her friend PW8 Miss Pariksha and her

younger sister Anjana took tea in Sonu hotel at Dadahu bazar,

where Miss Pariksha made a telephonic call to the appellant who

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3

came there and kidnapped the prosecutrix and took her in a bus

to Jamta where they stayed in the house of PW7 Prem Chand.

.

Next day they came to Naraingarh by bus and there the

appellant took her to the house of his aunt (Bua) and they stayed

there for the night. Thereafter they went to the house of

maternal uncle of the appellant by jeep where the appellant

introduced her as his sister and later the friend of the appellant,

namely Kailash took them to his quarter on the motor cycle

where they stayed for night. She stated that in the night they

slept together in one cot and was sexually assaulted. The next

day, she was taken to Ismailabad from where she called her

sister and thereafter the appellant came to be arrested.

4. After completion of the investigation, the appellant

was sent to face trial for having committed offences punishable

under Sections 363, 366A, 376 IPC, Section 4 of Protection of

Children from Sexual Offences Act, 2012 (herein after referred to

as POCSO Act) and Section 3(1)(xi) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as SC/ST Act).

5. The learned Special Judge after recording the

evidence and evaluating the same has acquitted the appellant

for the offences punishable under Sections 363, 366A IPC and

Section 4 of the POCSO Act, however, the appellant has been

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convicted for the offence punishable under Section 376(1) IPC

and Section 3 of the SC ST Act, as aforesaid.

.

6. Aggrieved by the judgment of conviction and

sentence passed by learned Special Judge, the appellant has filed

the instant appeal.

7. It is vehemently argued by Mr. Aman Sood, learned

Legal-aid-Counsel for the appellant that the findings recorded by

8.

r to
the learned Court below are perverse and, therefore, deserve to

be set aside.

On the other hand, learned Additional Advocate

General would argue that the judgment rendered by learned

Court below is based upon the correct appreciation of evidence

and passed strictly in accordance with law, therefore, the same

calls for no interference.

I have heard learned counsel for the parties and have

gone through the records of the case.

9. At the outset, it may be observed that the manner in

which the learned Court below is proceeded to evaluate the

evidence is not at all satisfactory. The learned Court below has

formed a very firm opinion that the prosecutrix was simpleton

and, therefore, even if she had sexual intercourse with the

appellant, the same could not be termed to be consensual. This

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5

is clearly evident from para-42 of the judgment which reads

thus:-

.

“42.As discussed earlier, the accused had not taken any
defence that it was a consented sexual intercourse. Because,
the accused had taken away the prosecutrix and as noticed

earlier, since the prosecutrix was village simpleton girl, she
might have been taken by the accused for taking her out to the
cities, without knowing that she may be sexually assaulted.
The area from where the prosecutrix hails, is a remote area of

this district and the courts have been receiving the cases from
such remote areas, where the girls have been sexually
assaulted/exploited and even sold in the neighbouring State.
Had such an offence been committed with the well educated

girl residing in the busy/modern town, then the accused would

have pleaded that the girl was a consenting party. But, in this
case, no suggestion has been given to the prosecutrix that she
was a consenting party and court cannot accept that the
prosecutrix was a consenting party in the absence of any such

evidence on record. This shows that the girl was sexually
assaulted by the accused without her consent and will, when
he had taken her to Ismailabad, from where she had been

recovered subsequently by the police.”

10. The aforesaid observations leave no manner of doubt

that it is the so called innocence of the victim that prevailed so

much upon the mind of the learned Court below that he

proceeded to pass an order of conviction, as would be clear from

further discussion.

11. It is the admitted case of the prosecution and is even

otherwise disclosed in the testimony of PW1 prosecutrix that she

alongwith her friend Miss Pariksha and younger sister had gone

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6

to Dadahu bazar where they took tea in Sonu hotel. While they

were there Pariksha gave a call to the appellant who came and

.

kidnapped her. The prosecutrix herself stated that from Dadhu

bazar she boarded a government bus and came to Jamta and

stayed at the appellant’s aunt (Bua) house for night. After that

they proceeded to the house of maternal uncle of the appellant

by jeep and then friend of the appellant Kailash took them to his

quarter on motorcycle and both of them stayed during the night.

She stated that in the night they had slept together on one cot

whereas Kailash was not in the room and during the night the

appellant sexually assaulted her twice. She further stated that

next day, Kailash called the appellant to meet him at his shop

and on the way police apprehended them and took them to

police station Ismailabad. It was the police party that gave the

call to her sister Pooja and after that her brother-in-law (Jija)

Desh Raj came to the police station.

12. In order to evaluate the statement of the prosecutirx,

it would be necessary to observe here that the learned Court

below while acquitting the appellant for the offence under

Sections 363, 366A IPC and Section 4 of POCSO Act has

categorically held the prosecutrix not to be a minor. However, it

has not believed the story of consensual sex only on the ground

that the girl happened to be from remote area of the District and,

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therefore, it was difficult to believe that she was a consenting

party. Obviously, such far fetched observations cannot be upheld

.

and the evidence otherwise need to be analysed within the well

settled legal parameters. Bearing in mind the fact that rape

causes distress and humiliation to the victim of the rape, but at

the same time the Court has to be mindful to the fact that a false

allegations of committing a rape also causes humiliation and

damages to the accused and the accused has also rights which

are required to be protected and the possibility of false

implication has to be ruled out.

13. The Hon’ble Supreme Court in Radhu vs. State of

Madhya Pradesh Cr.LJ 2007 (4) 4704 observed as follows:

“5. It is now well settled that a finding of guilt in a case of rape,
can be based on the uncorroborated evidence of the prosecutrix.
The   very   nature   of   offence   makes   it   difficult   to   get   direct

corroborating evidence. The evidence of the prosecutrix should not

be rejected on the basis of minor discrepancies and contradictions.
If the victim of rape states on oath that she was forcibly subjected
to   sexual   intercourse,   her   statement   will   normally   be   accepted,

even   if   it   is   uncorroborated,   unless   the
material on record requires drawing of an inference that there was
consent or that the entire incident was improbable or imaginary.
Even if there is consent, the act will still be a ‘rape’, if the girl is
under   16   years   of   age.   It   is   also   well   settled   that   absence   of
injuries on the private parts of the victim will not by itself falsify the
case of rape, nor construed as evidence of consent. Similarly, the
opinion   of   a   doctor   that   there   was   no   evidence   of   any   sexual
intercourse   or   rape,   may   not   be   sufficient   to   disbelieve   the
accusation of rape by the victim. Bruises, abrasions and scratches

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8

on the victim especially on the forearms, writs, face, breast, thighs
and back are indicative of struggle and will support the allegation

.

of   sexual   assault.   The   courts   should,   at   the   same   time,   bear   in

mind that false   charges of rape are not uncommon.   There have
also been rare instances where a parent has persuaded a gullible
or obedient daughter to make a false charge of a rape either to take

revenge or extort money or to get rid of financial liability. Whether
there was rape or not would depend ultimately on the facts and
circumstances of each case.”

14. Adverting to the facts, the prosecutrix in her cross

examination clearly stated that she was having Rs.500 whereas

Pariksha was not having any money. She further admitted that

Pariksha had earlier left her house on various occasions and used

to remain out of house even during night. The reports were also

lodged regarding this in the police and those matters were later

on compromised. She then proceeded to state that she had

previously not met the appellant and stated that she boarded the

bus with the appellant from Dadahu at 6:00 p.m. She specifically

stated that previously she has not gone with any person in such

manner. She admitted that she had not raised any alarm while

boarding the bus. She admitted that it was the appellant who

purchased the tickets and she visited Jamalta for the first time

that too at the instance of the appellant. She admitted that

when she alighted from the bus at 7:00 p.m. there was many

passengers in the bus at Jamta. She stated that the house of the

sister of the appellant was adjoining to the bazar at Jamta where

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a boy and women, later qualified as husband and wife were

residing and the house comprised of one room. The couple had

.

one child. She further stated that she slept on the bed alongwith

the appellant along with the couple with small child. She further

stated that from there they boarded bus to Nahan in the morning

and from Nahan they boarded another bus to Naraingarh. They

reached Naraingarh at around 9:00 a.m. and stayed there for one

day and she took bath and had food in the said house. She

admitted that she was kept well in the house. From Naraingarh,

they went to Ismailabad by car and reached there around 3:00

p.m. and stayed in the house of Kailash, which was single

storeyed and having single room. Kailash left the room after

leaving them there and during night the appellant had sexually

assaulted her for the first time.

15. The other witnesses do not happen to be eye

witnesses and, therefore, their testimonies are hardly of any

avail because 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

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10

Singh (1996) 2 SCC 384, State of 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.

16.

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

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11

incident happened and that ordinarily such a witness would
not tell a lie as to the actual 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.”

17. 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 improbable and belies logic, would be doing
violence to the very principles which govern the

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12

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

.

18. 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.”

19. 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

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13

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.”

  

20. 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

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14

witness, the status of the witness would be immaterial and
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 co-relation with each and everyone of other

supporting material 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.”

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15

21. Now, in case the testimony of prosecutrix is tested

on the aforesaid exposition of law, it would be evident that the

.

version put forth by the prosecutrix was that she was initially

kidnapped by the appellant and thereafter alleged to have been

raped, but surprisingly she did not choose to raise hue and cry or

make a complaint or lodge any protest with any person or

authority. Even when the prosecutrix had been recovered she

was in the company of the appellant, yet did not raise hue and

cry. This prolonged silence on the part of the prosecutrix, in fact,

speaks volume or else why a girl who is alleged to have been

kidnapped and thereafter subjected to forcible sexual intercourse

would keep mum even in public place(s).

22. This assumes significance because the prosecutrix is

emphatic that she did not know the appellant earlier and had

met him for the first time at Dadahu bazar from where he

kidnapped her. Even though, no exception can be taken to the

fact that the prosecutrix had been subjected to sexual

intercourse, but from the sequence of events as have been

enumerated above and have, in fact, been stated by the

prosecutrix herself, leave no manner of doubt that she was a

consenting party to the sexual intercourse and she of her own

will and volition had accompanied the appellant from Dadahu to

various places as mentioned aforesaid.

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23. Consent may be express or implied, coerced or

misguided, obtained willingly or through deceit. Consent is an act

.

of reason, accompanied by deliberation, the mind weighing, as in

a balance, the good and evil on each side. There is a clear

distinction between rape and consensual sex. The physical

relations between the parties had clearly developed with the

consent of the prosecutrix. There was no case of any resistance

nor had she raised any complaint with any person or authority.

24. Now, in case the history of MLC is seen, it would be

noticed that in the history it is recorded therein that the

prosecutrix had been staying with the appellant w.e.f.

16.12.2014 to 19.12.2014 with history of multiple sexual

intercourse with her, however, there was no marks of external or

internal injury and the last sexual intercourse had taken place on

19.12.2014 at around 11:00 a.m.

25. The mere fact that prosecutrix belongs to remote

area has no relevance whatsoever, afterall the rape is a rape and

the most morally and physically reprehensible crime in a society

as it is an assault on the body, mind and privacy of the victim.

While a murderer destroys the physical frame of the victim, a

rapist degrades and defiles the soul of a helpless female shakes

the very core of her life. That is why by no means can a rape

victim ever be called an accomplice. Rape leave a permanent

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17

scar on the file of the victim and, therefore, a rape victim is

placed on a high pedestal then an injured witness. Rape is a

.

crime against the entire society and violates the human rights of

the victim. Being the most hated crime, rape tantamounts to a

serious blow to the supreme honour of a woman, and offends

both her esteem and dignity. It causes psychological and physical

harm to the victim, leaving upon her indelible marks.

26.

Rape does not distinguish between class, creed,

forwardness or backwardness of the victim and it is on this count

that in matters of rape, the statement of the prosecutrix must be

primary consideration, but at the same time the broad principles

that prosecutrix has to prove its case beyond reasonable doubt,

apply equally to a case of rape and there can be no presumption

that prosecutrix would always tell the entire story truthfully.

27. In the light of aforesaid discussion, this Court is of

the firm opinion that even though the prosecutrix has been able

to establish that the appellant had committed sexual intercourse

with her, however, the said act was not committed forcefully, as

claimed by her, rather there is overwhelming evidence on record

to show that the same was consensual and since the prosecutrix

is a major, therefore, no offence against the appellant on account

of consensual sex is made out. Once the prosecution has failed

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18

to prove the allegation of rape, then no offence whatsoever is

made out under Section 3(1)(xi) of the SC ST Act.

.

28. In view of the aforesaid discussion, I find merit in this

appeal and the same is accordingly allowed and the appellant is

honourably acquitted from the aforesaid offences. Registry is

directed to prepare release warrants forthwith and send the

same to the concerned Jail Superintendent.

April 2, 2018
(Sanjeev)
r to (Tarlok Singh Chauhan)
Judge

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