Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.173 of 2010. Date of Decision: December 1, 2010. ------------------------------------------------------------------------------------------------------------- Shakto Ram. …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ?Yes. For the Appellant : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Surinder Singh, J (oral) : 1. The appellant felt aggrieved and dissatisfied by the judgment of conviction and sentence passed in Sessions trial No.5 of 2010 decided on 15.6.2010/ 13.7.2010 under Sections 376, 452 and 506-II of the Indian Penal Code, whereby he has been sentenced as under:- Serial Number Offence under Section Sentence 1. Section 376 IPC Simple Imprisonment for a period of seven years and to pay a fine of `25,000/- and in default of payment of fine to further undergo imprisonment for one year. - 2 - 2. Section 452 IPC Imprisonment for a period of two years and to pay a fine of `5,000/- and in default of payment of fine to further undergo imprisonment for six months. 3. Section 506-II IPC Imprisonment for a period of one year and to pay a fine of `5,000/- and in default of payment of fine to further undergo imprisonment for three months. year. 2. All the sentences aforesaid were ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also given. The fine amount, if realized was ordered to be paid as compensation to the victim. Hence, the challenge has been made in this appeal. 3. In short, the prosecution story can be summed up thus. The appellant (23 years) has been a neighbour of the prosecutrix residing in village Kuliara in district Chamba. On 30.10.2009, the prosecutrix (19 years) alongwith her father PW12 Man Singh contacted an advocate at Chamba and under his dictation, as per disclosure made by the prosecutrix, a complaint Ex.PW6/A was written by PW6 Amar Nath the Clerk of the advocate. The complaint was addressed to the - 3 - Superintendent of Police concerned and presented before him. Thereafter, it was endorsed to the SHO Sadar, Chamba for necessary action as per rules. (ii) The prosecutrix alleged in her complaint that about three months prior to moving of the said complaint, she was alone in the house, her mother had gone to cut the grass in the field and her father had gone out of village on account of some work. Taking the benefit of her loneliness appellant entered her room, gagged her mouth with a piece of cloth and committed rape. Thereafter he brandished a knife and threatened her with dire consequences if she would disclose this fact to anyone. Said incident resulted into her pregnancy. When her mother asked about the menstrual periods, she narrated the above incident to her, thereafter her parents enquired from the appellant but he denied the above facts and again threatened them with dire consequences. 4. The above complaint culminated into FIR Ex.PW14/A. The Police inspected the spot, prepared site plan Ex.PW14/B, took into possession her wearing apparels vide memo Ex.PW3/A and the prosecutrix was got medically examined from PW10 Dr. Arti Sharma - 4 - of district Hospital, Chamba. On the examination of the prosecutrix, said doctor did not find any external injury on her body, but on the examination of her abdomen, height of the uterus was found equal to 18 weeks in size. The foetal part was palpable and uterus relaxed. She was advised ultrasound for examination and confirmation of the pregnancy with gestational age. 5. PW13 Dr. N.K. Surya, Radiologist conducted the ultrasound and submitted his report Ex.PW13/B. In his opinion, the prosecutrix had conceived a baby of 19 weeks and 4 days of age (approximately 5 months). The final opinion was given by PW10 Dr. Arti Sharma on the MLC Ex.PW10/A. 6. The appellant was arrested on 8.12.2009. He was medically examined and found fit to perform sexual intercourse as per MLC Ex.PW14/G. Police also took into possession the affidavit of the appellant, wherein he admitted to maintain the child after his birth till he gets maturity and also the affidavit of the prosecutrix not to pursue the police case. The affidavit Ex.PW14/A of the appellant, was proved having been executed by him, by PW4 Rajeev Rattan, Advocate, - 5 - who was working as Notary Public at Chamba. It was attested on 5.11.2009. 7. During the investigation of this case, police obtained the copy of Pariwar Register, wherein the date of birth of the prosecutrix was mentioned as 8th March, 1990, on the basis of which PW2 Vinod Kumar, Secretary of the Gram Panchayat concerned issued his certificate Ex.PW2/A. 8. After completing the investigation of this case, challan was presented in the court for the trial of the appellant. The appellant was charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. 9. To prove its case, prosecution examined the prosecutrix, her father PW12 Man Singh, besides examining the doctors and other formal witnesses. The defence of the appellant was his false implication in the case for the alleged offences and alleged that he married another girl, thus the prosecutrix felt annoyed. The trend of the cross-examination revealed the consensual intercourse on account of existing love affairs with her; but denied the story as alleged in his statement under Section 313 Cr.P.C. - 6 - 10. The appellant was called upon to enter into his defence, but he did not lead any evidence in defence. 11. At the end of trial, learned trial Court disbelieved the defence raised by the appellant with respect to the consensual intercourse, but however believed the statement of the prosecutrix, as such, the appellant was convicted and sentenced as aforesaid, which is under challenged. 12. Shri M.S. Guleria, learned counsel for the appellant vehemently argued that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective. He led me through the evidence of the prosecutrix in extenso and ventilated that the testimony of the prosecutrix is not worth inspiring confidence and the circumstances do exists in the evidence of the prosecutrix to prove defence version by probability that there has been a consensual intercourse because of the existing love affairs inter se the prosecutrix and the appellant and the learned trial Court conveniently ignored it, which caused a material prejudice to the appellant. - 7 - 13. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. He further argued that the consent as pleaded in the instant case is not made out, as the prosecutrix had complained the matter to her parents though after about three months on account of fear from the society and later to the police but even during examination in the Court, she alleged rape by the appellant, which resulted into the pregnancy. Therefore, the trial court judgment cannot be faulted. 14. I have given my thoughtful consideration to the rival contentions of the parties and have closely, cautiously and meticulously scanned and reappraised the evidence of the prosecution. 15. On examination of the statement of the prosecutrix before the Court, I find that she had materially improved upon her complaint Ex.PW6/A and did not adhere to it, thus, resulting into the cross- examination by the learned Public Prosecutor after declaring her hostile. Although, she stated that the appellant committed rape on her three months prior to the date of lodging of the report to police and she did not make any complaint to anyone because she was - 8 - of fear due to the threats given to her by the appellant, but pertinently, in the cross-examination conducted by the learned Public Prosecutor, she denied having been threatened by the appellant by brandishing a knife. She was confronted with this portion ‘B to ‘B’ of her complaint Ex.PW6/A to which she flatly denied, having not been made. Once this fact is discerned, then it cannot be said that she had a fear of her life in case she would complain to her mother or any other near relative. She did not say that she was not allowed to meet anyone but according to her she was a worshiper of ‘Kali-Mata’ and she used to frequently visit the temple, where lot of people coming to her to put queries to solve their respective problems and she used to answer and resolve them as ‘Kali-Mata’ used to answer through her. Thus, when the prosecutrix had been mixing up with the general public and if she was raped she could have taken someone into the confidence and reported the matter to her parents, or any respectable members of the society or to the police, but she did not chose to do so. She further improved her story over the allegations in the complaint Ex.PW6/A that she was also raped by the - 9 - appellant in the temple itself about one week prior to three months from filing the complaint, which appears to be a cover up story and an attempt made to match the conception period and gestational age of the foetus. 16. Further her cross-examination on behalf of the appellant needs to be noticed. She admitted that earlier she appeared in the Court of Additional Sessions Judge (Fast Track Court) Chamba and had made a statement in the Court that she did not want to prosecute the accused/appellant. She was also confronted with her complaint Ex.PW6/A wherein incident of rape allegedly taken place in the temple of ‘Kali-Mata’ was not found mentioned. She also admitted that when she found herself pregnant, she asked her mother as to what was to be done and it was only then her father had asked her to report the matter in the Police Station at Chamba. 17. PW12 Man Singh, her father has also admitted his signatures on the affidavit executed by the prosecutr4ix, whereby she denied to prosecute the accused, but he tried to explain that his signatures were taken under misrepresentation. Pertinently, the - 10 - affidavit, which was sworn by the prosecutrix and taken into possession by the police was not produced during the trial to throw a light to reach the truth, but it only relied on the affidavit of the appellant, wherein he admitted the parentage of the child in the womb of the prosecutrix and accepted to provide maintenance to child till he attains majority. 18. The prosecutrix has been proved to be more than 18 years of age even by her own statement, by PW2 Vinod Kumar, Secretary of the Gram Panchayat and PW10 Dr. Arti Sharma. In such type of a case, the age of the prosecutrix assumes importance where the circumstances appear for consensual intercourse. The statement of PW10 Dr. Arti Sharma and PW13 Dr. N.K. Surya shows that the gestational age of the foetus does not match with the time of alleged rape. Further the first sexual intercourse which is said to have been committed by the appellant with her is alleged to be one week prior to three months from the date of report, lodged to the police. This fact of first sexual intercourse does not find mentioned in the complaint and there is no explanation for its omission. Further, the age of the foetus and date of conception comes to more than 1½ - 11 - months prior to the first allegation of sexual intercourse. The circumstances on record show that both were young, living in the same village in the neighbourhood. They developed intimacy, and admittedly since long they were in visiting terms and developed liking for each other. Later they indulged into the sexual act with consent, which resulted into pregnancy. The marriage of appellant was settled with another girl in the month of July and prosecutrix felt disturbed as having carried pregnancy and asked her mother what to do. Later, after appellant was married to some other girl but admitted to maintain the child of the prosecutrix by executing affidavit, she felt satisfied and is alleged to have given her affidavit not to prosecute the case. Thus, her version of alleged rape is not confidence inspiring. 19. Although, it is a settled law that the conviction of the accused for the commission of the rape on the basis of the statement of the prosecutrix alone is permissible, but it is in a case where the evidence of the prosecutrix is cogent, reliable and confidence inspiring. In case the evidence of the prosecutrix is not so and there is no independent and reliable evidence - 12 - to lend assurance to the truthfulness of the evidence of the prosecutrix, it is hazardous to base the conviction of the appellant on her non-confidence inspiring testimony. 20. Thus, against the aforesaid background and for the reasons stated above, no implicit reliance upon her testimony can be put to sustain the conviction of the appellant for the offences charged. The conduct of the prosecutrix and the circumstances in the case appearing make out a clear cut case of consent or a case of consensual intercourse by preponderance of circumstances. 21. Therefore, for the aforesaid reasons, the appeal is allowed and the judgment of conviction and sentence, passed by the learned trial Court is set-aside. 22. The appellant is undergoing the sentence in the jail. He be set at liberty, if not required in any other case. Necessary steps be taken by the Registry of this Court. The fine amount, if any deposited, be refunded to the appellant. 23. Matter stands disposed of. December 1, 2010. (Surinder Singh) (Pds) Judge. - 13 -