Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A.381 of 2009. Date of Decision: February 21, 2011. Gurmeet Singh. ….. Appellant. Versus State of Himachal Pradesh. …. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Appellant : Mr. Naresh K. Thakur, Advocate. For the Respondent: Mr. A.K.Bansal, Addl. Advocate General. SURINDER SINGH, J (oral). In the present appeal, the appellant has challenged his conviction and sentence passed under Section 376 of the Indian Penal Code, by the learned trial Court, in Sessions Case No.8 of 2009, on 17.9.2009, in this appeal. 2. In short, the prosecution story as emerges from the evidence on record can be stated thus. The prosecutrix (about 23 years) was an unmarried graduate. Her elder brother was residing and working at Talwara and younger one was serving at Faridabad as Electrician. Her father had died and she was residing with her mother in village Gangret, Tehsil Amb, District - 2 - Una, H.P. The appellant, a resident of Hoshiarpur (Punjab) was running a Videography business at Talwara and used to visit the village of the prosecutrix, as such he was known to her. During his visit, appellant and prosecutrix came closer. The appellant started proposing her for marriage, whereas he was already married having two children, which fact he kept concealed. The appellant also pretended that he had a handsome earning and would provide her all the necessities of the life. 3. On 28th August, 2008, the appellant telephonically contacted and insisted upon her to come to Talwara to have some talk, but in turn, she told him that she was to visit Talwara, next day, i.e. on 29th August, 2008 to purchase some articles and would meet him there. 4. The appellant met her around 9.00 a.m. at Bus stand Talwara and expressed his desire to marry her, within two days. On this pretext, he took her to a hotel at Dalhousie, hired a room, entry regarding stay was made in the Hotel register. Both of them stayed for the night in the said hotel. On the assurance of the marriage, she consented to have sexual intercourse - 3 - with him. Next morning, the appellant took her to the house of his relative somewhere in Punjab and kept her for two days. When prosecutrix told him to solemnise the marriage, he further took two days more time. Again, they had sex. When she persistently insisted upon the appellant for marriage to honour his promise, then he disclosed that he was already married, having two children, as such, he would not perform any marriage with her. On this, the prosecutrix told him that he should have disclosed this fact earlier and insisted upon her to take her back to her village. According to her, by playing fraud and concealing the facts of his marriage, he spoiled her life. 5. On 4.9.2008, the appellant took the prosecutrix to Talwara, where she met her mother accompanied by the police at the Bus-stand. Statement (Ex.PW1/A) of the prosecutrix under Section 154 of the Code of Criminal Procedure was recorded by the police on the spot. She was got medically examined and her statement under Section 161 Cr.P.C. was also recorded thereafter. 6. In the opinion of the doctor, there was sign of vaginal penetration. Her wearing apparels and sample - 4 - of pubic hair were sent for the Forensic Science Laboratory. The report Ex.PW7/B was received. The MLC containing the opinion of the lady doctor is Ex.PW7/C. 7. During investigation, police also prepared site plans Exts.PW12/A and PW13/B respectively of the place of the alleged incident and also the place from where she was recovered. The Police also took photocopy of the entries of the Hotel register and a bill whereby the payment was made by the appellant to the hotel Keeper with respect to their stay at Dalhousie. 8. On the completion of the investigation, challan was presented against the appellant, for the offences punishable under Sections 366 and 376 of the Indian Penal Code and at the end of trial, he was acquitted for the offence under Section 366 but convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and fine of `5,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of three months, which has been assailed in the present appeal. - 5 - 9. Shri Naresh K. Thakur, learned counsel for the appellant has vehemently argued that the case as propounded by the prosecutrix is sketchy, flimsy and blatantly false. He also ventilated that the medical evidence does not support version of the prosecutrix and further that the report Ex.PW13/A regarding her missing was manipulated by the police. It is also argued that the prosecutrix was a quite matured girl. She would not have fallen into trap of the appellant without verifying the status of his life and there is no evidence worth the name that the appellant procured the consent of the prosecutrix under the false promise of marriage. Shri Thakur also argued that in any case of conviction, the sentence in the facts and circumstances of the case appears to be on higher side, therefore, a lenient view is required to be taken in the facts and circumstances of the case, also keeping in view that he has small children to support and his wife had undergone major surgery and is unable to do the normal work. 10. On the other hand, Shri A.K. Bansal, learned Additional Advocate General has supported the judgment of conviction and sentence. - 6 - 11. I have thoughtfully considered the rival contentions of the parties and meticulously examined the record. 12. The perusal of the statement of prosecutrix reveals that she on 29th August, 2008 went to Talwara Bazzar to purchase some articles and she did not return thereafter. When her daughter did not return in the evening, PW5 her mother Smt. Beero Devi informed PW4 Smt. Suman Kumari, Pradhan of the Panchayat. They waited for about two days and when the prosecutrix did not return, then on 2nd September, 2008 a report Ex.PW13/A was lodged by the Pradhan (PW4), regarding her missing in the Police Station and again on 4th September, 2008, PW4 aforesaid alongwith her mother went to the Police Station to enquire about the status of the case. The Station House Officer deployed two police officials to assist them to locate the prosecutrix. The mother of the prosecutrix hired a vehicle and took the police towards Talwara. They located the prosecutrix at the Bus-stand, Talwara as stated by PW5 Smt. Beero Devi. In statement Ex.PW1/A of the prosecutrix, which was recorded on the spot, she clearly narrated the facts that the appellant had - 7 - allured her to marry and committed rape on her. When she insisted upon him to solemnise marriage, he put it off on one pretext or the other, later she came to know that he was a married person having two children. 13. During the trial, the prosecutrix admitted that the appellant, a relative of Punjab was known to her for the last about one year from the date of alleged occurrence, but did not disclose about the parentage and the status of the family. The appellant had proposed her in the month of January, 2008. She admitted that both of them were in love with each other and she also wanted to marry him, but did not disclose this fact to her friends and family members. She also did not enquire about the fact whether the appellant was married or not. She categorically stated that on 29th August, 2008, when she reached Talwara, the appellant met and told her that he wanted to marry her and further that he would solemnize the marriage within two days and then she was taken to Dalhousie, where they stayed for the night and the appellant committed sexual intercourse with her. Next day went to the house of his relative in Punjab. When she insisted upon him to honour the words given her to - 8 - perform marriage, he put her off on the one pretext or the other, later she was told that he was already married and cannot marry her. Then she rebuked him saying that he should have told her earlier. Thereafter, she insisted upon him to take her back. She denied in the cross-examination that the accused never had sexual intercourse with him. She was also confronted with her earlier statement recorded by the police but these contradictions are of minor in nature. Further a fatal suggestion was given to PW13 ASI Krishan Kumar in cross-examination in affirmative that investigation revealed that the accused committed sexual intercourse with the prosecutrix only once at Dalhousie. On examining her statement, I find her version worth confidence inspiring. 14. PW2 Darshan Kumar, Manager of the City Light Hotel, Dalhousie produced the record regarding the stay of the appellant and the prosecutrix in the hotel on 29th August, 2008. He also identified the appellant and the prosecutrix having stayed on the said date in Room No.201 and their entry was recorded at serial No.266 in the register, in his hand, which fact has not been - 9 - disputed in the cross-examination. His statement affords corroboration to her version. 15. Further PW7 Dr. Usha Daroch during the clinical examination of the prosecutrix on 5.9.2008, found the signs of vaginal penetration. On the receipt of the report of Chemical Examination, she endorsed the earlier opinion. It is worth noting that during her clinical examination, Doctor noticed labia majora and labia minora of the prosecutrix fully developed, but labia minora was reddish in colour and hymen was found ruptured. It was red with swollen margins and was oozing on touch. Vaginal orifice admitted one finger easily. In her opinion, the sexual intercourse was performed on the prosecutrix within 24 to 48 hours before the medical examination, which corresponds to the date and time of alleged coitus. She further testified that the swollen margin of the hymen and oozing on touch depict that there has been recent sexual intercourse, which strengthen the version given by the prosecutrix. 16. PW8 Dr. Prakash Daroch also found the appellant on his examination fit to perform the sexual intercourse. - 10 - 17. In his statement under Section 313 of the Code of Criminal Procedure, the case of the appellant was denial simplicitor, however he introduced altogether a new story in answer to Question No.18 that the prosecutrix and her mother had borrowed some money from him and when he demanded the same back, they planted a false case against him. When called upon to enter into his defence, even he did not lead any evidence in defence. 18. Although the appellant did not take the plea of consensual intercourse and his case was denial simplicitor, but the evidence on record discloses that the prosecutrix had submitted herself to coitus to the appellant as she was deeply in love with him, on the basis of the promise made by him that he was going to marry her very shortly, but he exploited her sexually by playing a fraud. 19. Indeed, there is fine distinction between ‘consent’ and ‘submission’. Every ‘consent’ is ‘submission’, but every ‘submission’ is not ‘consent’ and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her ‘consent’ existed unless the evidence on - 11 - record establishes that the sexual act, which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent towards one’s will or pleasure. 20. The evidence discussed above makes it clear that the submission of the body by the prosecutrix under the misconception of the fact cannot be construed as consented sexual act for the purpose of Section 375 of the Indian Penal Code. For the offence defined under Section 375 of the Indian Penal Code, it requires voluntary participation by the victim not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choice between ‘resistance’ and ‘assent’ depending upon facts of each case. 21. There is nothing on record to show that the appellant had made honest promise to the prosecutrix to solemnize the marriage with her. He kept hidden the fact that he was already married having two children. Had this been disclosed to the prosecutrix earlier, she - 12 - would not have submitted herself to have sex with the appellant. He did not allow her deliberate on the point to choose between good or bad. The promise to marry made to her by him was dishonest and not genuine. The appellant, when he had made the said promise did not have the intention of keeping to his promise, thus his promise/assurance was a really hoax to obtain the consent of the prosecutrix, which, in the light of Section 90 of the Indian Penal Code would have amounted to consent in law, which would indeed constitute an offence of rape, punishable under Section 376 of the Indian Penal Code. The evidence on record convincingly proves that the deception practiced on the prosecutrix, the appellant had induced her to have sexual intercourse with him, which proves that but for the deception practiced by him, the prosecutrix would not have had sexual intercourse with him. 22. Having examined the evidence on record and the reasons for conviction of the appellant recorded by the learned trial Court for the offence aforesaid, I do not find any error therein, therefore, his conviction is upheld. Insofar as the sentence is concerned, keeping - 13 - in view the extenuating and exaggerating circumstances on record, also his age and the fact that he has two minor children and ailing wife, the interest of justice would be met in case the substantive sentence passed upon the appellant by the learned trial Court is reduced to four years from seven years, without disturbing the other part of the impugned judgment. Ordered accordingly. 23. The amended jail warrant be prepared in line with the judgment modifying the sentence, to the Superintendent of jail concerned, by the learned trial Court. 24. The appeal stands accordingly disposed of. Send down the records of the trial court forthwith. (Surinder Singh) February 21, 2011. Judge. (Pds)