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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No. 357 of 2010

Judgment Reserved on : 13.04.2016

Date of Decision: April 28, 2016

State of Himachal Pradesh …Appellant

Versus

Pawan Kumar …Respondent

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?

1

Yes

For the appellant: Mr. V.S. Chauhan, Addl. Advocate General

with Mr. J. S. Guleria, Astt. Advocate

General.

For the respondent : Mr. Sanjeev Bhushan, Senior Advocate

with Ms. Abhilasha, Advocate.

Vivek Singh Thakur, J.

In the present case, the respondent-accused

had been acquitted of the offences punishable under

Section 376 of the Indian Panel Code by the learned

Sessions Judge, Solan, vide judgment dated 23.02.2010

Whether reporters of Local Papers may be allowed to see the judgment?

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after undergoing Sessions trial No. 13-S/7 of 2009, in

case FIR No. 237, dated 05.11.2008, Police Station,

Sadar Solan. The aforesaid judgment has been assailed

by the State in the present appeal.

2. Shri V.S. Chauhan, learned Additional

Advocate General has argued that there are sufficient

grounds and evidence on record to punish the

respondent-accused under Section 376 IPC and learned

trial Court has failed to appreciate and consider the

evidence on record in right perspective.

3. On the contrary, the learned counsel defending

the respondent-accused has supported the judgment

passed by the learned trial Court and has argued that no

grounds have been made out in the appeal warranting

the interference of this Court.

4. We have heard the respective counsel and have

also gone through the record.

5. As per the prosecution, PW-11 prosecutrix and

respondent-accused had developed proximity with each

other after introduction through sister of the respondent-

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accused in a visit to the house of the respondent

accused in May, 2005. As per the prosecutrix, after 3-4

months the respondent-accused had committed sexual

intercourse with her without her consent by

administering alcohol in cold drink in a residence of his

friend, near New Bus Stand, Solan where she had visited

on invitation of the respondent -accused to attend

birthday party of a friend of respondent-accused,

whereas, no such party had been foun d by the

prosecutrix on that place. As per prosecution story

thereafter respondent-accused had promised and had

been promising the prosecutrix to marry her and with

such assurance had been continuing physical relations

with the prosecutrix. The respondent-accused had been

visiting the prosecutrix at her residence, in the beginning

at Shimla and lateron, at Chambaghat District Solan.

Out of this relation, the prosecutrix had conceived

pregnancy thrice prior to alleged last abortion in the

month of September, 2008 allegedly caused by the

respondent-accused administering some medicine in

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golgappa on 25.09.2008, consumed by the prosecutrix in

good faith which was offered by the respondent-accused.

On a complaint of the prosecutrix in the month of

October, 2008, the respondent-accused was called in the

Police Station, Sadar, Solan and a compromise had been

reduced into writing on 16.10.2008 according to which

the respondent-accused had agreed to marry the

prosecutrix on 02.11.2008. The said compromise had

been signed and witnessed by the mother of the

prosecutrix (PW-12) and Up Pradhan, Gram Panchayat

Seri (PW-4) Shri Laxmi Dutt Sharma. It has been stated

by the prosecution witnesses that the prosecutrix, her

mother alongwith her friend and one Bittu had visited the

house of respondent-accused with request to solemnize

marriage of the respondent-accused with prosecutrix.

However, the family of the respondent-accused and the

respondent-accused had refused to marry the

prosecutrix. Thereafter, the prosecutrix has lodged FIR

No.237, dated 05.11.2008, in Police Station, Sadar Solan.

After putting the challan in the trial Court, the

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prosecution examined as many as 16 witnesses. Perusal

of evidence indicates that PW-1 Shashi Bala the friend of

mother of prosecutrix, PW-4 Laxmi Dutt Sharma Up

Pradhan Gram Panchayat Seri, PW-11 Prosecutrix, PW-

12 Vimla Devi, mother of the prosecutrix are the relevant

witnesses for considering the merit of the appeal.

6. In her examination-in-chief, PW-11 prosecutrix

has reiterated the version stated in the FIR. She has also

stated in examination-in-chief that even prior to the last

termination of pregnancy in September 2008, the

respondent-accused had to suffer abortion three times.

She had further stated that she wanted to save last

pregnancy but the respondent-accused visited her house

in the absence of her mother and offered golgappa and

after consumption of golgappa, the prosecutrix had

suffered stomach pain and bleeding resulting termination

of pregnancy.

7. PW-12 Vimla Devi stated that she had found

the prosecutrix receiving telephone calls during night in

the year 2008 and on inquiry the prosecutrix had

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disclosed that respondent-accused wanted to marry the

prosecutrix. Lateron, she had found the respondent-

accused at her residence but she had admonished him

when he had touched her feet, wept and had sought time

of six months to marry the prosecutrix. On avoiding

marriage by respondent -accused and detecting

pregnancy of the prosecutrix, she had visited the house

of the accused-respondent alongwith prosecutrix, cousin

of prosecutrix and her friend whose name was not known

to her. According to her, father of the accused-

respondent had conveyed that they will to visit her home

for deciding the issue of marriage. She has stated that

the respondent-accused, his father, two sisters and

brother in law had visited her house in the evening on

the same day at 8.00 PM and offered money to close the

chapter refusing to marry the prosecutrix. However, the

said offer was rejected by her as prosecutrix and the

respondent-accused were in love with each other. It was

also deposed by her that the respondent-accused had

administered something to the prosecutrix in her absence

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at her residence which had resulted bleeding to the

prosecutrix and the prosecutrix had been taken to Dr.

Maria, Maria Medical and Diagnostic Centre, the Mall,

Shimla and thereafter abortion took place. Thereafter

complaint was made to the police and the respondent-

accused agreed to solemnize marriage on 02.11.2008

which was reduced into writing vide compromise dated

16.10.2008 Ex. PW-4/A. On failure to marry, the

prosecutrix had lodged FIR against the respondent -

accused on 05.11.2008.

8. PW-1 Shashi Bala has deposed that she was

residing all alone at Sanjauli and the prosecutrix had

come to her house about one and half years back

followed by the respondent-accused in the evening. She

has stated that after dinner, both the respondent -

accused and prosecutrix had stayed in one room for

night by stating that their marriage was likely to be

performed. This witness was informed by the mother of

the prosecutrix after 3-4 months that the prosecutrix was

pregnant. She has stated that she had visited the house

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of respondent-accused with PW-11 prosecutrix, PW-12

mother of prosecutrix and one driver of the car. From

the statement of PW-1, a new fact has been introduced

which had never been stated by PW-11 or PW-12 at the

time of making complaint to the police or during the

investigation or while deposing during trial.

9. PW-12 Shashi Bala claims her to be friend of

PW-12 Vimla Devi and visiting to house of the

respondent-accused with PW-12 whereas PW-12 has

stated that she did not know the n ame of friend

accompanying her to the house of respondent -accused.

It is also unnatural and unbelievable that PW-12 Vimla

Devi does not know the name of her friend accompanying

her to the house of the respondent- accused especially

when so called friend had also been examined as witness

as PW-1 in support of prosecution case.

10. Prosecutrix PW-11 and PW-12 her mother

have deposed that that the respondent-accused and his

family members were refusing to marry and offer ing

money to close the chapter and threatening to change the

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DNA report. However, the conduct of the prosecutrix

enjoying the company of respondent-accused voluntarily

and accepting golgappa offered by him, without any

hesitation despite alleged previous history of unwilling

abortion, is unbelievable in normal course, particularly,

in strained relations.

11. The prosecution is relying on the compromise

Ex. PW-4/A, signed by the respondent -accused in

presence of witness PW-12 mother of the prosecutrix and

PW-4 Up Pradhan of the Panchayat. PW-4 is an

independent witness. On scrutiny of statement of

witnesses the said compromise cannot be said to be

executed with free consent and possibility of signing the

said compromise under pressure cannot be ruled out as

the PW-4 Shri Laxmi Dutt Sharma has admitted in the

cross-examination that prosecutrix was threatening to

the respondent-accused not to permit him to solemnize

marriage with the girl with whom the engagement of the

respondent- accused had taken place and the prosecutrix

was pressurizing the respondent-accused for marriage,

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whereas, the respondent-accused was not willing to

marry with the prosecutrix. PW-4 has further stated that

the respondent-accused had told him that he was not

having sexual relations with the prosecutrix but was only

known to her on account of her visits in his house with

his sister. PW-4 has further admitted that the

compromise had been executed under pressure of police

and others. Therefore, this compromise cannot be

considered as a valid piece of evidence for convicting the

respondent- accused.

12. It also transpires from scrutiny of evidence

that the respondent-accused had been called to Police

Station on some complaint by the prosecutrix and her

mother in October, 2008 and thereafter matter was

compromised vide compromise dated 16.10.2008 Ex. PW -

4/A. No such complaint has been placed on record by

the prosecution nor any Police Official present at that

time had been cited as witness nor disclosed or

examined in the Court. These circumstances are also

against prosecution.

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13. In statements Ex. D-3 made by PW-12 before

the police, she has clearly stated that when they were

asking the respondent- accused and his family to marry

the prosecutrix, then, the family members had clearly

stated that they will not solemnize the marriage with

prosecutrix and they had threatened to perform DNA test

which reflects that the respondent-accused and his

family was sure that pregnancy is not on account of

physical relations of respondent -accused and

prosecutrix.

14. The facts as narrated by the prosecutrix to the

PW-2 Dr. Anju Maddan, PW-3 Dr. Anita Sood and PW-14

Asha Maria are also cast doubts on the prosecution

story. The prosecutrix had visited PW-3 Dr. Anita Sood

on 29

th October, 2008 and had stated that she was

having pregnancy but the development of the child was

not proper. However, on ultra soundgraphy no pregnancy

was found whereas while reporting to PW-14 Dr. Asha

Maria on 26.09.2008, prosecutrix had complained

missing of period and slight bleeding and on sonography

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pregnancy was detected and missed abortion was

doubted. However prosecutrix had not reported back to

the Doctor as advised. On 5.11.2008, the prosecutrix

had stated to Dr. Anju Maddan that she had suffered

abortion around 26.09.2008. From perusal of deposition

of PW-2, PW-3 and PW-14, it appears that immediately

after detection of abortion, the same had been managed

to be aborted and to verify the termination PW-3 Dr.

Anita Sood had been approached pretending no

knowledge of abortion, whereas before PW-2 Dr. Anju

Maddan, she had specifically stated that abortion had

taken place around 26.09.2008. Possibility of aborting

herself after threatenings of the family of the respondent

accused to get the DNA test conducted cannot be ruled

out to wash away the best evidence available to ascertain

the truth. In such facts and circumstances, it is also

suspicions that who was interested in abortion and who

had caused the same.

15. PW-13 had investigated the matter who has

admitted that prosecutrix had failed to identify the spot

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and house where she was allegedly assaulted after

administering alcohol in cold drink. As per him, the

prosecutrix had taken the police to a building known as

Anand Complex, saying that the place of occurrence was

one quarter inside the said Complex. However, in cross-

examination, he has admitted that on the Top Floor of

Anand Complex, there is a Shopping Complex, below that

Commercial Hall, below that a Marriage Hall and on the

Ground Floor, there is a paid parking. At the time of

alleged incident, the prosecutrix being young girl of 22

years, was having enough prudence to identify the place

of alleged occurrence. Therefore, failure to identify the

alleged place of occurrence also goes against the

prosecution.

16. It has come on record that the prosecutrix

had not complained for almost three years despite

conceiving and suffering three abortions during this

period. Such a conduct casts serious doubt on the

prosecution story. It appears that FIR against

respondent-accused lodged after due deliberations by

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arranging the facts and story as per suitability of the

prosecutrix on not succumbing of t he respondent-

accused to pressurize the prosecutrix to marry her.

17. Rape is not only crime against the basic

human right of victim violating her right guaranteed

under Article 21 of the Constitution of India but also a

crime against the entire Society. It is will settled law that

unblemished and reliable statement of prosecutrix is

sufficient to convict an accused. However, in case the of

rape, onus is always on prosecution to prove the guilt of

accused by leading credible evidence. It is also cardinal

principles of Criminal Jurisprudence that when two views

are possible, the view beneficial to the accused is to be

followed.

18. The testimony of prosecutrix should be

appreciated in background of entire case. In the present

case, in the testimony of prosecutrix, it has been come

on record that she has alleged that she was in

relationship with the accused and had been allowing

access to the accused at her residence in the absence of

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her mother without any resistance and had even stayed

over night with him and the prosecutrix had been

continuing to do so despite knowing that the accused

was duping her. A woman of the age of prosecutrix i.e.

around 21 years is prudent enough to understand the

consequences of relationship as alleged by her. It was not

a single instance that the prosecutrix was pregnant and

the respondent-accused had not been marrying her

despite alleged assurances. Conviction of an accused on

the testimony of prosecutrix must be based upon a

testimony inspiring confidence. As discussed supra, it is

un-believable that despite bitterness in relation and

denial to marry her, the prosecutrix had been enjoying

company of the accused and accepting golgappa. On the

basis of the conduct of prosecutrix and other material on

record including the statements of doctors, there are

sufficient grounds to discredit the statement of

prosecutrix. In these circumstances, it can be safely

presumed that relationship as alleged was not being

continued by the prosecutrix for assurance of marriage

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but for other reasons, which do not constitute an

offence. In entire circumstances of the present case, the

testimony of the prosecutrix is un-believable and is not

of worth credence.

19. Other official witnesses are of no help to

prosecution case as the depositions of the prosecutrix

and other relevant witnesses do not inspire confidence to

establish the committal of alleged offence against the

respondent-accused.

20. Having perused the testimony of the

prosecution witnesses on record, it cannot be said that

prosecution has been able to prove its case, beyond

reasonable doubt, by leading clear, cogent, convincing

and reliable material on record. The Court below, in our

considered view, has correctly and completely

appreciated the evidence so placed on record by the

prosecution. It cannot be said that the judgment of trial

Court is perverse, illegal, erroneous or based on incorrect

and incomplete appreciation of material on record

resulting into miscarriage of justice. Therefore, acquittal

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of respondent-accused cannot be said to have resulted

into travesty of justice, hence, no interference is

warranted in instant case.

For all the aforesaid reasons, present appeal,

devoid of any merit, is dismissed, so also pending

applications, if any. Bail bonds, if any, furnished by the

accused are discharged. Records of the Court below be

immediately sent back.

(Sanjay Karol),

Judge.

(Vivek Singh Thakur),

Judge.

April 28, 2016

(brb)

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