High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA:

Cr. Appeal No.485 of 2008

Judgment reserved on:4.11.2014.

Date of Decision: January 7, 2015.

_________________________________________________________

State of Himachal Pradesh. .....Appellant.

Vs.

Pawan Kumar son of Sh Sanget Ram . ....Respondent.

Coram:

Hon’ble Mr. Justice Sanjay Karol, Judge.

Hon’ble Mr.Justice P.S.Rana, Judge.

Whether approved for reporting1? Yes.

For the appellant: Mr.B.S.Parmar, Addl.A.G. with

Mr.J.S.Guleria, Asstt. Advocate

General.

For the respondent: Mr.Arvind Sharma, Advocate.

P.S.Rana, Judge.

JUDGMENT : Present appeal is filed again st the

judgment passed by the learned Additional Sessions Judge

Whether reporters of the Local papers are allowed to see the judgment? yes.

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Mandi HP in Sessions trial No. 40 of 2003 titled State of HP

Vs. Pawan Kumar decided on dated 26. 3.2006.

BRIEF FACTS OF THE PROSECUTION CASE:

2. It is alleged by prosecution that about 4/5

months prior 19.6.2002 at place Char Kufri forest and rivulet

accused repeatedly committed rape upon prosecutrix. It is

alleged by prosecution that after committing rape upon

prosecutrix accused threatened prosecutrix that he would

kill the prosecutrix in case prosecutrix disclosed the incident

of rape to anyone. It is alleged by prosecution that thereafter

accused also committed rape upon prosecutrix for 4-5 times

at place Char kufri forest. It is alleged by prosecution that on

dated 20.6.2002 prosecutrix started vomiting and thereafter

prosecutrix was taken by her father Babu Lal to Civil

Hospital Karsog for medical check up and treatment. It is

alleged by prosecution that medical officer after medical

check up told that prosecutrix was pregnant. It is alleged by

prosecution that thereafter prosecutrix along with her father

Babu Lal went to Police Station Karsog where FIR Ext PW1/A

was filed. It is alleged by prosecution that prosecutrix was

medically examined by Dr. Jiya Lal on dated 20.6.2002 and

medical officer observed that prosecutrix was pregnant for

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about 18-20 weeks. It is alleged by prosecution that

thereafter Dr.Jiya Lal Civil Hospital Karsog issued MLC Ext

PW7/B and referred the prosecutrix for opinion of expert to

IGMC Shimla. It is alleged by prosecution that thereafter Dr.

Ravinder Sharma medical officer conducted ultrasound of

the prosecutrix. It is alleged by prosecution that as per ultra

sonography film Ext PW8/A medical officer has given opinion

that prosecutrix was carrying pregnancy of 21 weeks. It is

alleged by prosecution that thereaf ter prosecutrix was

examined by Dr. Anil Sood Cardiologist IGMC Shimla and

medical officer opined that prosecutrix was heart patient. It

is alleged by prosecution that thereafter on dated 10.7.2002

abortion of the prosecutrix was conducted under the

supervision of Dr.Ajay Kumar Sood at Kamla Nehru Hospital

Shimla. It is alleged by prosecution that Dr. Ajay Kumar

Sood prepared report Ext PW12/C. It is alleged by

prosecution that during the investigation of ca se the

prosecutrix located the place of incident and site plan Ext

PW10/B and Ext PW10/C were prepared. It is alleged by

prosecution that accused was also medically examined by

Dr.Jiya Lal in Civil Hospital Karsog and MLC Ext PW7/D was

obtained. It is alleged by prosecution that on the request of

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Investigating Officer PW6 Man Singh panchayat Assistant

issued certificate Ext PW6/C on the basis of entries of family

register. Charge was framed against the accused by learned

trial Court on dated 3.10.2005 and accused did not plead

guilty and claimed trial.

3. Prosecution examined as many as twelve

witnesses in support of its case.

Sr.No. Name of Witness

PW1 Sunita

PW2 Babu Lal

PW3 Satya Devi

PW4 Sunehru Devi

PW5 Amar Singh

PW6 Man Singh

PW7 Dr.Jiya Lal

PW8 Dr.Ravinder Sharma

PW9 HC Devinder Singh

PW10 Inspector Vijay Sen

PW11 Dr.Anil Sood

PW12 Dr.Ajay Kumar

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4. Prosecution also produced following piece of

documentary evidence in support of its case:

Sr.No. Description.

Ext PW1/A FIR

Ext PW6/A Certificate

Ext PW7/A Prescription slip

Ext PW7/B MLC

Ext PW7/C X-ray form

Ext PW7/D MLC

Ext PW8/A Ultrasonography film

Ext PW8/B &

Ext PW8/C

Identification mark

Ext PW10/A Identification mark

Ext PW10/B

& Ext

PW10/C

Spot map

Ext PW10/D Statement

Ext PW10/E Application for medical

examination of accused

Ext PW10/G Letter sent by medical

superintendent Kamla Nehru

Hospital

Ext PW11/A Cardiology report

Ext PW11/B Prescription slip issued by

IGMC

Ext PW11/C Report

Ext PW12/A Prescription slip issued by

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IGMC

Ext PW12/B Face sheet issued by IGMC

Ext PW12/C Abortion report of prosecutrix

5. Statement of the accused was also recorded

under Section 313 Cr.P.C. He has stated that a false case

has been foisted against him. He has stated tha t he is

innocent and falsely implicated in present case. Accused did

not lead any defence evidence. Learned trial Court acquitted

the accused under Section 376 IPC.

6. Feeling aggrieved against judgment passed by

the learned Additional Sessions Judge Mandi appellant-State

filed present appeal.

7. We have heard learned Additional Advocate

General appearing on behalf of the State and learned

Advocate appearing on behalf of the respondent and also

perused entire record carefully.

8. Point for determination in the present appeal is

whether learned trial Court did not properly appreciate the

oral as well as documentary evidence adduced by the parties

and caused miscarriage of justice to the appellant as alleged

in memorandum of grounds of appeal.

ORAL EVIDENCE ADDUCED BY PROSECUTION:

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9. PW1 prosecutrix has stated that about four

years back she went to Char Kufri forest to collect fuel wood.

She has stated that at about 12 noon accused Pawan Kumar

came there and committed rape upon her. She has stated

that accused also threatened her to kill in case she disclosed

the incident of rape to anyone. She has stated that since she

was heart patient she was brought to Civil Hospital Karsog

for medical check up after 4/5 months of the incident. She

has stated that accused had raped her 4-5 times before her

check up in the hospital. She has stated that medical officer

told in the hospital that prosecutrix was pregnant. She has

stated that thereafter she told to her mother that accused

had committed rape upon her 4-5 times at place Char Kufri

forest. She has stated that thereafter FIR Ext PW1/A was

recorded. She has stated that during the investigation she

disclosed the place of incident. She has stated that clothes

which she was wearing at the time of occurrence wer e

washed by her. She has stated that thereafter pregnancy was

terminated in Kamla Nehru Hospital Shimla. She has stated

that accused had forcibly committed rape upon her. She has

stated that she is illiterate and a rustic lady. She has stated

that she does not remember about the date, month and year

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of the incident. She has stated that she did not try to defend

herself with ‘Darat’ (Sharp edged weapon) when accused

committed rape upon her. She has stated that she did not try

to resist and did not receive any injury on her person. She

has stated that she was in a possession of ‘Darat’ (Sharp

edged weapon). She has stated that she was married to Des

Raj by a court marriage at Hamirpur. She has denied

suggestion that accused did not commit rape upon her. She

denied suggestion that present case was filed against the

accused just to grab money from accused.

9.1 PW2 Babu Lal has stated that prosecutrix is his

daughter. He has stated that his daughter is heart patient.

He has stated that in the month of June 2002 she was

vomiting and thereafter he took prosecutrix to Civil Hospital

Karsog for medical check up. He has stated that age of the

prosecutrix at the time of incident was 17 ½ years. He has

stated that thereafter medical officer told that prosecutrix

was carrying pregnancy. He has stated that due to fear

prosecutrix did not disclose to him as to who was responsible

for her pregnancy. He has stated that after two days of

medical check up prosecutrix told to her mother that

accused had raped her 4-5 times at place Char Kufri forest

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and once at the source of water ad-joining to his house. He

has stated that prosecutrix used to go to collect fuel wood

from the forest. He has stated that prosecutrix was

threatened by accused not to disclose anyone about the

incident otherwise he would kill her. He has stated that he

reported the matter to the panchayat. He has stated that

thereafter FIR Ext PW1/A was lodged. He has stated that

thereafter medical officer advised for abortion of prosecutrix

because prosecutrix was heart patient and she was not in a

position to give birth to child. He has stated that prosecutrix

was also medically examined. He has stated that prosecutrix

was heart patient from her childhood. He has stated that

prosecutrix is illiterate. He has stated that prosecutrix was

sent to school only in first class. He has stated that since

prosecutrix was heart patient thereafter her education was

dropped. He has denied suggestion that accused was

outsider and falsely implicated in the present case. He has

stated that prosecutrix was married in District Hamirpur

with Des Raj. He has denied suggestion that prosecutrix did

not disclose that she was raped by accused.

9.2 PW3 Smt. Staya Devi has stated that

prosecutrix is her daughter. She has stated that when

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prosecutrix was vomiting her husband Babu Lal took

prosecutrix for her medical treatment to Civil Hospital

Karsog. She has stated that medical officer told that

prosecutrix was pregnant. She has stated that after 4-5 days

of her medical check up prosecutrix told to her that the child

was of accused Pawan Kumar. She has stated that accused

had raped prosecutrix at place Char Kufri forest. She has

stated that prosecutrix was under fear and she did not

disclose the incident to her earlier. She has stated that

prosecutrix was threatened by accused that he would kill

prosecutrix in case she disclosed the incident of rape to

anyone. She has stated that prosecutrix was raped for 4-5

times. She has stated that prosecutrix is heart patient since

her childhood. She has stated that prosecutrix was vomiting

for one month prior to her medical check up. She has stated

that she inquired from prosecutrix as to why she was

vomiting but prosecutrix did not disclose anything. She has

stated that she did not suspect prosecutrix to be pregnant

before her medical check up. She has denied suggestion that

prosecutrix was pregnant by someone else other than the

accused. She denied suggestion that false case was filed

against accused just to grab the money from accused.

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9.3 PW4 Smt Sunehru Devi has stated that

accused is distantly related to her. She has stated that

accused visited her house only about ten years ago and

thereafter accused never came to her house. Witness was

declared hostile by prosecution. She has denied suggestion

that accused visited in her house in the month of May 2002.

She has stated that her son was working as labourer with

Amar Singh about threshing work. She has stated that

during threshing work the accused visited at her house for 3-

4 days and he also used to go with her son and used to come

with her son in the evening.

9.4 PW5 Amar Singh has stated that he had

purchased a thresher in the year 2002. He has stated that he

employed the son of Sunehru Devi for running thresher in

the month of May 2002. He has stated that accused came to

the house of Sunehru Devi and used to help son of Sunehru

Devi in threshing work and accused worked for about 5 -6

days. He has admitted that threshing work was conducted

day and night during the month of May.

9.5 PW6 Man Singh has stated that in the year 2002

he was having additional charge of Secretary Gram

Panchayat Karsog. He has stated that on the request of

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police he issued certificate Ext PW6/A. He has stated that on

the basis of certificate Ext PW6/A he made entries in family

register. He has stated that the date of birth of the

prosecutrix is recorded as 10.11.1983.

9.6 PW7 Dr Jiya Lal Medical Officer has stated that

he was posted at CHC Karsog since 2003. Medical Officer

has stated that on dated 20.6.2002 prosecutrix was brought

to medical officer by police. M.O has stated that he examined

the prosecutrix. Medical Officer has stated that patient was

conscious, co-operative, well oriented to time place and

person. Medical Officer has stated that there was no external

injury on the part of the body of prosecutrix. Medical Officer

has stated that vaginal orifice admitted two fingers. Medical

Officer has stated that hymen was ruptured. Medical Officer

has stated that there was no bleeding. Medical Officer has

stated that posterior fornix was deep and vaginal wall lax.

Medical Officer has stated that there was no vaginal injury.

Medical Officer has stated that vaginal discharge was present

in whitish colour. Medical Officer has stated that urine

colour was positive. Medical Officer has stated that vaginal

sperm was negative. Medical Officer has stated that he

advised the prosecutrix for further medical examination.

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Medical Officer has stated that the pregnancy of the

prosecutrix was 21 weeks duration. Medical Officer has

stated that there was no evidence that recent intercourse

was took place. Medical Officer has stated that he issued

MLC Ext PW7/B which bears his signature. Medical Officer

has stated that he also examined the accused Pawan Kumar.

Medical Officer has stated that accused was conscious, co-

operative and well oriented to time place and person. Medical

Officer has stated that there was no external injury on any

part of the body of accused. Medical Officer has stated that

external genetalia, penis, scrotum and t estis were well

formed of adult size. Medical Officer has stated that there

was no evidence of external injury on external genetalia.

Medical Officer has stated that blood samples for DNA test

obtained. Medical Officcer has stated that accused was able

to perform sexual intercourse. Medical Officer has stated that

he issued MLC Ext PW7/D. Medical Officer has stated that

as per his opinion prosecutrix did not have sexual

intercourse for about 4-5 days prior to her medical

examination.

9.7 PW8 Dr. Ravinder Sharma has stated that he is

running clinic at Hoshiarpur. He has stated that he was

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Registrar in the Radiological department. He has stated that

prosecutrix was referred by medical officer Karsog vide Ext

PW7/C for determining the gestational age and confirmation

of pregnancy. He has stated that he conducted ultra

sonography of the abdomen of the prosecutrix. He has stated

that ultra sonography film is Ext PW8/A which bears his

signature. He has stated that he has given opinion Ext

PW8/B. He has stated that there was pregnancy of 21 weeks

duration. He has stated that prosecutrix was subjected to

sexual relation. He has stated that exact duration of the

pregnancy could not be determined by ultra sonography.

9.8 PW9 HC Devinder Singh has stated that he was

posted as Investigating Officer in the year 2002. He has

stated that on dated 9.8.2002 he recorded the statement of

Dr.Anil Sood at Shimla according to his version and

thereafter file was handed over to Station House Officer. He

has denied suggestion that he did not record the statement

according to the version of witness.

9.9. PW10 Vijay Sen has stated that he was posted as

Investigating Officer Police Station Karsog in the year 2002.

He has stated that on dated 19.6.2002 prosecutrix came

along with her father Babu Lal and reported the matter and

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thereafter he recorded FIR Ext PW1/A. He has stated that

thereafter he deputed Koshalya Devi to get medical

examination of prosecutrix from CHC Karsog. He has stated

that MLC of the prosecutrix was obtained. He has stated that

thereafter prosecutrix located the site where she was raped

by accused prior to 4-5 months of the incident. He has stated

that spot map of the place of incident was prepared at the

instance of the prosecutrix. He has stated that thereafter he

handed over case file to SI Nain Singh. He has stated that

thereafter accused Pawan Kumar was medically examined.

He has stated that on dated 22.6.2002 he got birth certificate

of the prosecutrix from panchayat Secretary and recorded

the statement of panchayat Secretary. He has stated that

birth certificate of the prosecutrix is Ext PW6/A. He has

stated that thereafter ultrasound sonography of the

prosecutrix was conducted. He has stated that he also

recorded supplementary statement of the prosecutrix. He

has stated that prosecutrix was raped by accused several

times as depicted in Ext PW10/B.

9.10. PW11 Dr.Anil Sood has stated that he was

posted as Assistant Professor Cardiology IGMC Shimla in the

year 2002. He has stated that on dated 5.7.2002 prosecutrix

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was examined by him as victim of rape. He has stated that

after examination of prosecutrix he observed that prosecutrix

was suffering from heart disease. He has stated that he

found hole in the heart of prosecutrix and she was carrying

pregnancy of three months. He has stated that he referred

the prosecutrix to Kamla Nehru Hospital Shimla.

9.11. PW12 Dr. Ajay Kumar Sharma has stated that

he was posted as M.D. student at Kamla Nehru Hospital

w.e.f. March 2001 to March 2004. He has stated that

prosecutrix was admitted in Kamla Nehru Hospital. He has

stated that abortion of the prosecutrix was conducted in his

supervision on dated 10.7.2002 at 9 PM and report to this

effect is Ext PW12/C. He has stated that prosecutrix was

again examined after two hours at 11 PM. He has stated that

thereafter the condition of the prosecutrix was found

satisfactory.

10. Submission of learned Additional Advocate

General appearing on behalf of the State that offence of rape

is proved against the accused beyond reasonable doubt as

per testimony of prosecutrix and the case of the prosecution

falls under definition of rape defined under Section 375 IPC

Clause-3 because consent of the prosecutrix was obtained

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under fear of death by the accused and on this ground

appeal be accepted is rejected being devoid of any force for

the reason hereinafter mentioned. We have carefully perused

the testimony of prosecutrix placed on record. Rape is

defined under Section 375 of the Indian Penal Code 1860

and two essential ingredients of Section 375 IPC are (1) That

sexual intercourse by a man with woman (2) That sexual

intercourse must be under circumstances falling under any

of the seven clauses of Section 375 IPC. It is well settled law

that rape is not only a crime against the person of a woman

but it is crime against the entire society. It is well settled law

that rape destroys entire psychology of a woman and pushed

the woman into deep emotional crisis. It is a crime against

basic human rights and is also violative of Fundamental

Rights namely the Right to Life contained in Article 21 of the

Constitution. See AIR 1996 SC 922 titled Sh Bodhisattwa

Gautam Vs. Ms Subhra Chakraborty . It was held in case

reported in AIR 1979 SC 185 titled Tukka Ram and another

Vs. State of Maharashtra that consent is of two types (1)

Willing consent (2) Passive consent and it depends upon the

circumstances of each case whether the consent by the

victim was mere passive consent or willing consent. It is

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alleged by prosecution that the age of the prosecutrix at the

time of incident was about 17 years and accused

committed rape upon prosecutrix 4-5 times at place Char

Kufri forest and in the rivulet when prosecutrix used to visit

in forest in order to bring fuel wood. It is the case of the

prosecution that prosecutrix used to take ‘Darat’ (Sharp

edged weapon) along with her. Prosecutrix did not narrate

the incident of first rape to her parents and even accused

after the incident of first rape subsequently committed

sexual intercourse with prosecutrix 4-5 times. PW2 Babu Lal

and PW3 Smt. Satya Devi have specifically stated in positive

manner that they did not force prosecutrix to go to forest to

bring fuel wood because prosecutrix was suffering from heart

disease. The fact that prosecutrix voluntarily went to the

forest to bring fuel wood 3-4 times after the commission of

first rape committed by the accused and fact that

prosecutrix did not narrate the incident to her parents and

sister about first rape and the fact that prosecutrix was not

unarmed at the time of alleged commission of rape but

prosecutrix was in possession of ‘Darat’ (Sharp edged

weapon) and fact that prosecutrix did not inflict any injury

upon the person of accused when accused tried to commit

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sexual intercourse upon prosecutrix and fact that

prosecutrix did not sustain any injury upon her vaginal part

and fact that accused also did not sustain any injury upon

his penis and any other parts of the body is clearly proved

that present case is a case of passive consent on the part of

the prosecutrix for sexual intercourse. It is well settled law

that conviction can be sustained on the sole testimony of

prosecutrix in rape case but we are of the opinion that

testimony of prosecutrix qua rape in the present case is not

trustworthy nor reliable because prosecutrix herself

voluntarily went to forest after the commission of first rape

and thereafter continuously four times performed sexual

intercourse in different dates with accused but prosecutrix

did not narrate the incident of sexual intercourse to her

parents. Prosecutrix narrated the incident to her parents

about sexual assault only when the factum of pregnancy was

disclosed by medical officer to the parents of prosecutrix

after 4-5 months of incident.

11. Another submission of learned Additional

Advocate General appearing on behalf of the State that it is

proved on record that accused was fit to perform sexual

intercourse and the factum of sexual intercourse duly proved

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on record by way of medical evidence and on this ground

appeal be accepted is also rejected being devoid of any force

for the reason hereinafter mentioned. We are of the opinion

that prosecution is under legal obligation to prove beyond

reasonable doubt that the case of the prosecution covers

within definition defined under Section 375 of the Indian

Penal Code 1860. After careful perusal of entire oral as well

as documentary evidence placed on record we are of the

opinion that prosecution did not prove beyond reasonable

doubt that accused had committed offence as defined under

Section 375 of the Indian Penal Code 1860.

12. Another submission of learned Additional

Advocate General appearing on behalf of the State that

learned trial Court has wrongly acquitted the accused by

holding that there was inordinate delay in reporting the

matter to the police which is duly explained by the

prosecution because prosecutrix was threatened by the

accused not to disclose the incident of rape to anybody

otherwise he would kill her and on this ground appeal be

accepted is also rejected being devoid of any force for the

reason hereinafter mentioned. It is the case of prosecution

that sexual intercourse was committed by accused 4-5 times

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on different dates at place Char Kufri forest and rivulet but

prosecutrix did not report the incident of sexual intercourse

to anyone after the commission of first sexual intercourse.

On the contrary prosecutrix thereafter had committed four

times passive sexual intercourse with accused. It is proved

on record beyond reasonable doubt that prosecutrix

voluntarily went to lonely place at Char Kufri forest and

rivulet. The factum that prosecutrix voluntarily went to the

same place where initial sexual intercourse was committed

by accused proved passive consent on the part of the

prosecutrix for sexual intercourse. In the present case FIR

was lodged when factum of pregnancy of prosecutrix came to

the knowledge of her parents and when the FIR was lodged

at that time prosecutrix was pregnant of about 21 weeks.

Even PW8 Dr. Ravinder Sharma has stated that pregnancy of

the prosecutrix was of 21 weeks. Hence we are of the opinion

that delay is not satisfactory explained by the prosecution in

the present case.

13. Another submission of learned Additional

Advocate General appearing on behalf of the State that there

was no enmity between the official witnesses and learned

trial Court has illegally disbelieved the testimony of the

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official witness and on this ground appeal be accepted is also

rejected being devoid of any force for the reason hereinafter

mentioned. Official witnesses are not the eye witness of the

incident. Eye witness of the incident is only prosecutrix and

the testimony of the prosecutrix clearly proves that there was

passive consent on the part of the prosecutrix because

prosecutrix with passive consent went to place Char Kufri

forest and rivulet wherein accused committed sexual

intercourse with prosecutrix 4-5 times in different dates.

14. Another submission of learned Additional

Advocate General appearing on behalf of the State that

offence of rape is proved against accused as per testimony of

medical officers and as per MLC placed on record and on this

ground appeal be accepted is also rejected being devoid of

any force for the reason hereinafter mentioned. We have

carefully perused the testimony of medical officers. PW7 Dr.

Jiya Lal has specifically stated that when he examined

prosecutrix no external injury was found upon prosecutrix.

PW7 Dr. Jiya Lal has specifically stated that vaginal orifice

admitted two fingers. He has specifically stated that hymen

was ruptured old. He has stated that he did not observe any

bleeding and vaginal injury. He has specifically stated in

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positive manner that he did not observe any spermatozoa in

vaginal of the prosecutrix. PW7 has specifically stated in

positive manner that there was no evidence of recent sexual

intercourse. He has specifically stated that he did not

observe any external injury on genital part of the prosecutrix.

PW8 Dr. Ravinder Sharma has specifically stated in positive

manner that pregnancy of the prosecutrix was of 21 weeks.

He has stated that prosecutrix was subjected to sexual

relationship. PW11 Dr. Anil Sood has stated that prosecutrix

was pregnant and in view of the fact that ‘Darat’ (Sharp

edged weapon) was in the hand of the prosecutrix at the time

of alleged incident, in view of the fact that prosecutrix was

about 17 years of age at the time of incident and in view of

the fact that prosecutrix did not cause any injury to the

accused through ‘Darat’ (Sharp edged weapon) or through

nails or through teeth bites upon any portion of the body of

accused clearly prove that present case is a case of passive

consent on the part of prosecutrix. We have carefully perused

MLC of accused Pawan Kumar placed on record and no

injury was found upon external genitalia area of the accused

and no injury was found upon any other parts of the body of

accused.

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15. Another submission of learned Additional

Advocate General appearing on behalf of the State that as per

prosecution story rape was committed by the accused in the

forest which was a lonely place and although the prosecutrix

has raised hue and cry but none came for her rescue and on

this ground appeal be accepted is also rejected being devoid

of any force for the reason hereinafter mentioned. We have

carefully perused the site plan submitted by the prosecution

wherein the alleged rape was committed by the accused

fifteen days prior to reporting of FIR. As per site plan Ext

PW10/C placed on record last rape was committed by the

accused at a distance of about 10 meters from the residential

house of prosecutrix. There is no evidence on record that

prosecutrix was forcibly dragged by the accused from her

residential house to the place of last incident of rape which

was situated merely at a distance of 10 meters from the

residential house of prosecutrix and there is no evidence on

record that prosecutrix raised hue and cry clearly proves

passive consent on the part of prosecutrix. There is no

evidence on record in order to prove that accused was in

possession of any sharp or blunt weapon at the time of

commission of rape. Non possession of any sharp edged

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weapon or blunt weapon in the hand of accused clearly

proves that the present case is case of passive consent on the

part of the prosecutrix. No reason has been assigned by the

prosecution as to why the prosecutrix did not raise any hue

and cry when last sexual intercourse was committed upon

prosecutrix by the accused at a distance of merely 10 meters

from her residential house 15 days earlier of filing FIR as

shown in site plan Ext PW10/C placed on record. It was held

in case reported in (2005) 9 SCC 765 titled Anjlus Dungdung

Vs. State of Jharkhand that suspicion however strong cannot

take place of proof. It was held in case reported in (2010) 11

SCC 423 titled Nanhar Vs. State of Haryana that

prosecution must stand or fall on its own leg and it cannot

derive any strength from the weakness of the defence. Also

See: (1984) 4 SCC 116 Sharad Birdhichand Sarda Vs. State

of Maharashtra. It is well settled law that conjecture or

suspicion cannot take place of legal proof. See: AIR 1967 SC

520 Charan Singh Vs. The State of Uttar Pradesh. Also See:

AIR 1971 SC 1898 Gian Mahtani Vs. State of Maharashtra. It

was held in case reported in AIR 1979 SC 1382 State (Delhi

Administration) Vs. Gulzarilal Tandon that suspicion

however strong cannot take the place of legal proof. Also See:

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AIR 1983 SC 906 titled Bhugdomal Gangaram and others Vs.

The State of Gujarat See: AIR 1985 SC 1224 titled State of

UP Vs. Sukhbasi and others. It is well settled principle of law

that vested right accrued in favour of the accused with the

judgment of acquittal by learned trial Court. (See (2013) 2

SCC 89 titled Mookkiah and another Vs. State. See 2011 (11)

SCC 666 titled State of Rajashthan Vs. Talevar and another.

See AIR 2012 SC (Supp) 78 titled Surendra Vs. State of

Rajasthan. See 2012 (1) SCC 602 titled State of Rajasthan

Vs. Shera Ram @ Vishnu Dutt). It is well settled principle of

law (i) That appellate Court should not ordinarily set aside a

judgment of acquittal in a case where two views are possible

though the view of the appellate Court may be more

probable. (ii) That while dealing with a judgment of acquittal

the appellate Court must consider entire evidence on record

so as to arrive at a finding as to whether views of learned

trial Court are perverse or otherwise unsustainable (iii) That

appellate Court is entitled to consider whether in arriving at

a finding of fact, learned trial Court failed to take into

consideration any admissible fact (iv) That learned trial court

took into consideration evidence brought on record contrary

to law. (See AIR 1974 SC 2165 titled Balak Ram and another

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Vs. State of UP, See (2002) 3 SCC 57 titled Allarakha K.

Mansuri Vs. State of Gujarat, See (2003) 1 SCC 398 titled

Raghunath Vs. State of Haryana, See AIR 2007 SC 3075

State of U.P Vs. Ram Veer Singh and others, See AIR 2008

SC 2066, (2008) 11 SCC 186 S.Rama Krishna Vs. S. Rami

Raddy (D) by his LRs. & others. Sambhaji Hindurao

Deshmukh and others Vs. State of Maharashtra, See (2009)

10 SCC 206 titled Arulvelu and another Vs. State, See

(2009) 16 SCC 98 titled Perla Somasekhara Reddy and

others Vs. State of A.P.See:(2010) 2 SCC 445 titled Ram

Singh @ Chhaju Vs. State of Himachal Pradesh).

16. Another submission o f learned Additional

Advocate General that as per amendment w.e.f. 3.2.2013 in

Section 375 IPC age of consent has been enhanced to

eighteen years and in present case at the time of medical

examination of prosecutrix her age was 17 ½ years and on

this ground appeal filed by State of HP be accepted is

rejected being devoid of any force for the reason hereinafter

mentioned. Present incident took place 4/5 months prior to

19.6.2002. We are of the opinion that amendment

w.e.f.3.2.2013 in definition of rape is prospective in nature

and is not retrospective in nature. We are of the opinion that

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previous and subsequent conduct and behaviour of

prosecutrix are material factors for conclusion of active

consent or passive consent in rape cases as per Section 8 of

Indian Evidence Act 1872.

17. In view of the above stated facts we are of the

opinion that judgment passed by learned trial Court is based

upon oral as well as documentary evidence placed on record

and we also hold that no miscarriage of justice is caused to

the State of HP in the present case while acquitting the

accused. We give benefit of doubt to the accused in the

present case and we dismiss the appeal filed by State of HP.

Pending application(s) if any are also disposed of. Record of

learned trial Court along with certified copy of judgment be

sent back forthwith. Appeal disposed of.

(Sanjay Karol)

Judge.

(P.S.Rana)

Judge.

January 7, 2015(R)

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