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Himachal Pradesh High Court

______________________________________________________________________ vs Pankaj Samkadia on 11 January, 2017

Bench: Sanjay Karol, Ajay Mohan Goel

1 THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 44 of 2015 Reserved on: 27.12.2016 .

Date of Decision: 11.01.2017 ______________________________________________________________________ State of Himachal Pradesh .....Appellant.

                                 Vs.
    Pankaj Samkadia                                                     .....Respondent.

    Coram:




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The Hon'ble Mr. Justice Sanjay Karol, Judge The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes.

For the appellant:

rt Mr. Vikram Thakur, Deputy Advocate General.

For the respondent: Ms. Arti Sharma, Advocate, vice Mr. Naresh Kaul, Advocate.

Ajay Mohan Goel, Judge :

By way of this appeal, the State has challenged the judgment passed by the Court of learned Additional Sessions Judge-I, Kangra at Dharamshala in Sessions Case (RBT) No. 268/2012, dated 17.09.2014, vide which learned trial Court has acquitted the accused for commission of offences punishable under Sections 376 and 506 of the Indian Penal Code.

2. The case of the prosecution was that prosecutrix moved an application on 16.11.2012 to Superintendent of Police, Kangra Whether the reporters of the local papers may be allowed to see the Judgment?

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mentioning therein that three years ago while she was a student of +1 class in a school at Rehan, accused used to come and obstruct her path and insisted for her friendship and also threatened that in case she .

refused his friendship, then he would falsely level allegations against her.

At that relevant time, age of the prosecutrix was 16 years and she was allured by the accused, who took her to a hotel at Nurpur and committed sexual intercourse with her forcibly and also allured her to marry him, of besides threatening her that in case she revealed these facts to anyone, he would kill her family members. Accused continued to have sexual intercourse with prosecutrix for about three years and also intimidated rt her that he would defame the prosecutrix by showing her MMS. It was also the case of the prosecutrix that she lodged the FIR when after attaining the age of 18 years, she asked the accused to marry her, who however declined to marry her. Prosecutrix also stated that she had reported the matter to SHO, Police Station, Nurpur on 05.09.2011, wherein she was called upon to enter into a compromise forcibly.

3. On the basis of said complaint of the prosecutrix, FIR No. 392/2012 was registered on 17.11.2012 at Police Station, Nurpur.

Thereafter, investigation was carried out by the police and in the course of investigation, SHO prepared site plans of hotel Vatika at Bohad and hotel Span Spa at Khushinagar, Nurpur as well as hotel Midnight at Harnota, wherein prosecutrix was allegedly sexually assaulted by the accused. The Investigating Officer also prepared the site plan of the ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 3 school where prosecutrix had studied and seized the Sim and Mobile of accused alongwith his motorcycle. Prosecutrix was got medically examined and details of her mobile call records were also obtained.

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Thereafter, statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure.

4. After completion of investigation, challan was filed in the Court and as a prima facie case was made out against the accused, of accordingly he was charged for commission of offences punishable under Sections 376 and 506 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

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5. In order to prove its case, the prosecution produced ocular as well as documentary evidence before the learned trial Court, which included the statements of 16 prosecution witnesses. Defence examined one witness.

6. Learned trial Court vide its judgment dated 17.09.2014, acquitted the accused by holding that in view of shaky and unreliable evidence qua rape and criminal intimidation as projected in the prosecution case, it would be unsafe to hold that prosecution had established and proved its case against the accused under Section 376 and 506 of the Indian Penal Code beyond reasonable doubt. Learned trial Court took note of the fact that FIR was lodged after almost three years or more from the first incident of rape allegedly committed by the accused upon the prosecutrix. Learned trial Court also took note of the fact that ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 4 prosecutrix had not reported the first incident of rape and subsequent incidents of sexual intercourse committed with her by the accused, though it was the case of the prosecutrix that accused was allegedly .

criminally intimidating her to kill her family members and send her MMS in case she revealed to anyone about their sexual relations. Learned trial Court also took note of the fact that prosecutrix had stayed in different hotels at different times with the accused and while she was moving of around with the accused in various hotels at different places where accused allegedly committed sexual intercourse with her, it was unbelievable that the said sexual intercourse was without the consent of rt the prosecutrix. Learned trial Court held that there were ample opportunities for the prosecutrix to have had reported the matter to the police earlier, though in her subsequent application, she had given a reasoning that it was only after she attained the age of 18 years and she asked the accused to marry her and when the accused refused to do so, she filed the complaint. On these bases, learned trial Court held that the primary grievance of the prosecutrix remained that she had sexual relations with the accused for about three years and she did not report the same to anyone as the accused had threatened her and also promised to marry her, however, as on the date of offence, prosecutrix was more than 16 years old and could legitimately have given consent for sexual intercourse and further there was no cogent explanation for delay of more than three years in reporting the matter to the police, which was fatal to ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 5 the case of the prosecution. Learned trial Court also held that though the case of the prosecutrix was that she was criminally intimidated by the accused qua displaying of her photographs and MMS and killing her .

family members if she disclosed that petitioner was sexually harassing her, however, said allegations did not found mention in the FIR and the deposition of the prosecutrix in Court was unreliable as the same was full of improvements. Learned trial Court held that prosecutrix had of specifically stated in her cross-examination that accused maintained sexual relations with her for a period of about three years and it was difficult to believe that for such long period her consent was not there.

rt Learned trial Court also held that there was inconsistency in the story as was put forth by the prosecutrix as firstly her case was that accused had promised to marry her and thereafter she came forth with the version that her MMS was prepared by the accused who threatened to reveal the same. Learned trial Court also held that though the prosecutrix had stated that she had seen her own MMS recorded by the accused, but this fact was not there in the statement of the prosecutrix recorded under Section 154 of the Code of criminal Procedure, on the basis of which FIR was recorded. On these bases, learned trial Court came to the conclusion that in fact story of preparation of MMS as was put forth by the prosecutrix was manifestly untrue and was rather an afterthought to justify the delay. Learned trial Court also took note of the fact that the prosecutrix had admitted in her cross-examination that she had not ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 6 disclosed to her parents that she had visited and stayed at several hotels with the accused at different places, which clearly established that she had kept her affair with the accused a secret. Learned trial Court also .

took note of the fact that PW-16 ASI Surjeet Singh, the Investigating Officer of the case had admitted in his cross-examination that the prosecutrix was in fact interested in getting married with the accused at any cost and when accused refused to accept the proposal of the of prosecutrix, she was motivated to implicate the accused falsely. Learned trial Court also held that prosecutrix was visiting the jail to meet the accused after his arrest which was evident from Ex. D1 to Ex. D3, entries rt in the prisoners interview register, which contained signatures of prosecutrix qua her visit to meet accused on different dates, which clearly established that prosecutrix was not aggrieved with her sexual relations with accused for about three years and the story propounded by the prosecutrix was unreliable. On these bases, learned trial Court held that the prosecution had failed to prove its case against the accused qua rape and criminal intimidation and it acquitted the accused for commission of offences punishable under Sections 376 and 506 of the Indian Penal Code.

7. Feeling aggrieved by the judgment so passed by the learned trial Court, the State has filed this appeal.

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8. We have heard the learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by the learned trial Court.

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9. Before proceeding further, it is relevant to take note of the fact that in the present case, the accused has the benefit of being acquitted by the learned trial Court.

10. The Hon'ble Supreme Court in Mohammed Ankoos and of Others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 Supreme Court Cases 94 has held:

"12. rt This Court has, time and again, dealt with the scope of exercise of power by the Appellate Court against judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken. It is not necessary to multiply the decisions on the subject and reference to a later decision of this Court in Ghurey Lal v. State Of Uttar Pradesh1 shall suffice wherein this Court considered a long line of cases and held thus :

(SCC p.477, paras 69 -70) "69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 8 378 and 386 of the Criminal Procedure Code, 1973.

Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion .

with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when (2008) 10 SCC 450 he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

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3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at rt issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

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(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

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(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper rt weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."

11. In State of Himachal Pradesh Vs. Kahan Chand, 2016 (1) Drugs Cases (Narcotics) 576, a Coordinate Bench of this Court has held as under

"19. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohamed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 10 has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged."

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12. In this background, now this Court has to scrutinize the judgment passed by the learned trial Court as well as the evidence adduced on record by the prosecution to ascertain as to whether the findings of acquittal returned by the learned trial Court are borne out of from the records of the case or the judgment so passed by the learned trial Court is hit by perversity.

13. In order to prove its case, the prosecution in all examined 16 rt witnesses, whereas defence examined one witness.

14. Prosecutrix entered the witness box as PW-4 and she stated that in the year 2010, she was a student of +1 class at Senior Secondary School, Rehan and accused used to pursue her to have friendship with her. She further stated that accused used to proclaim that if she did not accept his friendship, then he would come to her house and insult her.

According to the prosecutrix, her age at that relevant time was 16 years and she was not interested in talking to the accused, who kept on troubling her for three years. She further stated that the accused had told her that he had arranged a party at Nurpur in a hotel and there accused took her in a room where he committed sexual intercourse with her without her consent. She further deposed that accused assured her that he would marry her and accordingly, she did not reveal this fact to ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 11 anyone. She further deposed that accused continuously had sexual intercourse with her for three years and criminally intimidated her by saying that in case she revealed the same to anyone, he would send the .

MMS of her which had been prepared by him. She further stated that when she attained the age of 18 years, she asked the accused to marry her, which he denied and thereafter she reported the matter to SHO, Police Station Nurpur. She further stated that accused alongwith his of parents had forcibly made her to enter into a compromise for marriage with accused, but accused did not marry her and thereafter, she approached Police Station, Nurpur for registration of FIR, which was rt deferred on the pretext of compromise and in these circumstances, she moved an application Ex. PW4/A to Superintendent of Police Kangra at Dharamshala, pursuant to which, FIR No. 392/12 was registered at Police Station, Nurpur. In her cross-examination, she admitted that her caste and the caste of the accused were different. She further deposed that she could not tell the specific date or month when accused had taken her to hotel at Nurpur. She further stated that hotel was at a distance of 15 to 20 kms. from her village. She further stated that there was staff in the hotel. She admitted that she did not report the matter to the police in the year 2010 nor she took up the matter with her parents.

She also admitted it to be correct that in the year 2011, neither she reported the matter to the police nor did she reveal the said fact to any one. She further stated that she had seen her own MMS recorded by the ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 12 accused, but she had not stated before the police while making statement Ex. PW4/A that she had seen her MMS. She also admitted that her statement was recorded twice and in neither of her statements .

on either of the two occasions, she revealed watching of the said MMS.

She also stated that police had not shown during the course of investigation the said MMS to her. She further admitted it to be correct that she had not stated in her statements that the accused was of possessing more than one mobile phone. She admitted the suggestion that in her statement/compromise Ex. PW4/F, there was no reference of assurance of her marriage with the accused. She also admitted it to be rt correct that the said document contained her signatures as well as signatures of both of her parents. She also admitted it to be correct that she had sworn affidavit mark-DA, wherein she had stated that she had falsely reported the matter with the police and she was not interested in pursuing the case. She also admitted it to be correct that she had not disclosed to her parents that she had visited different hotels at different places with the accused.

15. Mother of the prosecutrix entered the witness box as PW-5 and she deposed that prosecutrix told her that accused had committed sexual intercourse with her on several occasions on the false pretext of marriage and that she had visited number of hotels at Nurpur and Dehri with him. In her cross-examination, she stated that she had not reported either to the Panchayat or in her Biradari or to the police the factum of ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 13 accused allegedly teasing the prosecutrix. She admitted it to be correct that in the year 2010-11, neither she nor her husband nor the prosecutrix lodged any complaint with the police to the effect that .

prosecutrix was subjected to sexual intercourse on the pretext of false marriage. She also admitted it to be correct that in the year 2010, prosecutrix had completed 16 years of age. She also admitted it to be correct that in Ex. PW4/F, there was no reference of assurance of of marriage by the accused with the prosecutrix.

16. Dr. Surekha Gupta, who medically examined the prosecutrix on an application so filed by the police, entered the witness box as PW-2 rt and she deposed that physical examination of the prosecutrix revealed that she was a conscious and a well aware lady and there were no marks of injury on any part of her body. In her cross-examination, this witness deposed that it was correct that she did not note or observe any marks of resistance or violence on the person of the prosecutrix and as per clinical examination, she found the prosecutrix to be habitual of sexual intercourse.

17. Investigating Officer, ASI Surjeet Singh, who entered the witness box as PW-16, in his cross-examination admitted that his investigation revealed that prosecutrix was interested in getting married to the accused at any cost. He further deposed that no record of MMS or SMS was recovered by him during the course of investigation nor any record or MMS was traced. He admitted it to be correct that prosecutrix ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 14 was aged 16 years in the year 2010. He also stated in his cross-

examination that the record traced of the hotels which were visited by the prosecutrix alongwith the accused revealed that no specific dates had .

been mentioned as to when the prosecutrix had visited the aforesaid hotels in the company of the accused.

18. Ranjeet Singh Dogra, Assistant Superintendent Sub Jail Nurpur was examined by the defence as DW-1 and he deposed that as of per entries of prisoners interview register dated 03.12.2012, 05.12.2012 and 07.12.2012, prosecutrix had come to Sub Jail Nurpur to visit the accused while he was in judicial custody.

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19. Before proceeding further, it is relevant to mention that the birth certificate of the prosecutrix is on record Ex. PW3/A and as per the said certificate, the date of birth is recorded as 02.01.1994.

20. A perusal of the statement of the prosecutrix demonstrates that as per her, against her wishes she was allured by the accused to enter into physical relations with him on the pretext of marriage. It was further the case of the prosecutrix that in fact accused allured her while she was a student of +1 class at Senior Secondary School, Rehan in the year 2010.

21. In the present case, complaint on the basis of which FIR was lodged is Ex. PW4/A dated 16.11.2012 and FIR is dated 17.11.2012.

There is on record a statement of the prosecutrix Ex. PW4/F, in which it finds mentioned that she had filed a complaint against the accused at ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 15 Police Station, Nurpur under the influence of some people and as a compromise had been entered into between the parties, she was not interested in pursuing the complaint so lodged by her and that she was .

making the statement in front of her parents. This statement of her also bears the signatures of her father and her mother. The complaint which was so made by her against the accused and which she withdrew by way of this statement of her is on record as Ex. PW4/D, in which it was of alleged that the accused used to harass the prosecutrix when she was studying in the School and he wanted her to have friendship with him and he coerced her to enter into friendship with him and thereafter on rt the pretext of marriage, he maintained physical relations with her and as he had gone back upon his word and was not willing to marry her, therefore, action be taken against him.

22. A perusal of Ex. PW4/D reveals that it is not mentioned therein as to in which particular year, the accused started alluring her or initially following her and since when he started maintaining physical relations with her on the pretext of marrying her.

23. Be that as it may, it is a matter of record, as we have already discussed above, that as per the prosecutrix, complainant initially had sexual intercourse with the accused somewhere in the year 2010 and FIR was lodged against the accused on 17.11.2012 and before this, a complaint which was filed by the prosecutrix against the accused, was withdrawn by her. It is a matter of record, as has come forth in the ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 16 statement of the prosecutrix herself that the factum of her relation with the accused was concealed by her from everyone. According to her, she had not disclosed these facts to her parents also.

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24. Besides this, another important aspect of the matter is that it stands proved on record that the prosecutrix has stayed with the accused in different hotels at different places, where according to the prosecutrix, accused sexually exploited her. If that was so, then no of explanation has come forth from the prosecutrix as to why she did not raise any hue and cry, because it was not her case that either these places were secluded or the hotels to which she was taken by the rt accused were at isolated places which were not visited by other customers. The explanation which has been given by the prosecutrix that the accused in fact maintained physical relations with her against her will and without her consent, as he threatened to exploit her on the basis of MMS of her which was with him, is without any credibility, because it has come in the statement of the Investigating Officer that no such MMS in fact has been found. Not only this, twice statements of the prosecutrix were recorded by the police and in none of these statements it was stated by the prosecutrix that she had seen any MMS of her allegedly recorded by the accused. Thus, the explanation which has been given by the prosecutrix as to why she did not raise any hue and cry when she was sexually exploited by the accused has not been proved or corroborated by any material on record.

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25. Therefore, in our considered view, the prosecution has not been able to prove, nor it is borne out from the testimony of the prosecutrix that she was subjected to sexual intercourse by the accused .

against her will. On the other hand, the factum of the prosecutrix having maintained relations with the accused over a span of about three years and her visiting the accused even after he was arrested and lodged in jail, demonstrates that the sexual relationship entered into between the of prosecutrix and the accused was a consensual sexual relationship. In the absence of any material on record from which it can be inferred that the said relationship was not a result of the consent of the prosecutrix, in rt our considered view, no inference to the contrary can be drawn only on the basis of conjectures and surmises.

26. This Court is not oblivious to the fact that in a case under Section 376 of the Indian Penal Code, the sole testimony of the prosecutrix is enough to hold the accused guilty, but then such deposition of the prosecutrix has to be cogent, reliable and trustworthy.

In this case, according to us, the statement of the prosecutrix is neither cogent, nor reliable nor the same is trustworthy. Besides this, it has come in the statement of Dr. Surekha Gupta, who has medically examined the prosecutrix that neither any marks have been found on the body of the prosecutrix of violence and further that the prosecutrix was habitual to sex.

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27. It is settled law that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.

There is no rule of law that her testimony cannot be acted upon without .

corroboration in material particulars. This is for the reason that the prosecutrix stands at a higher pedestal than an injured witness.

However, the fact still remains that the testimony of the prosecutrix on the face of it has to be acceptable. {See State of U.P. Vs. Pappu alias of Yunus and another (2005) 3 Supreme Court Cases 594}.

28. Though it is settled law that corroboration is not sine qua non for conviction in a rape case, however, it is relevant to refer to the rt judgment of Hon'ble Supreme Court in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54, in which it has been observed as under:

"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...."

29. In our considered view, in the facts of the present case, as they emerge from the evidence which has been placed on record by the prosecution, it cannot be said that the testimony of the prosecutrix is either cogent or it is trustworthy, reliable or the same seems to be truthful. Further, the credibility of the testimony of the prosecutrix has ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 19 also been impinged by the defence in her cross-examination. At the cost of repetition, we state that the prosecution has not been able to produce iota of evidence to substantiate that prosecutrix was raped by the .

accused on the promise of marriage.

30. The Hon'ble Supreme Court has held in State of Punjab Vs. Gurmit Singh and others, (1996) 2 Supreme Court Cases 384:

"x x x x x x x x x x The courts must, while evaluating evidence, remain alive to the fact that in of a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved rt in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 20 before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, be viewed .

with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist of upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the rt evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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 given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 21 treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the .

shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC 550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench rt summarised the position in the following words:

(SCC p. 559, para 16) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 22 satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to .

look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence of required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances rt of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. "

31. The Hon'ble Supreme Court in Radhu Vs. State of Madhya Pradesh, (2007) 12 Supreme Court Cases 57 has held:

" 6. 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 ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 23 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 of 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 rt any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches 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."

32. In Narender Kumar Vs. State (NCT of Delhi), (2012) 7 Supreme Court Cases 171, the Hon'ble Supreme Court has held:

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"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the .

prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence of under 1 Page 12 the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing rt out an otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge.

However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P and Vishnu v. State of Maharashtra).

22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 25 with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. .

Bhusare & Ors. v. State of Maharashtra.

23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, this Court while dealing with the issue held: (SCC p. 535, para 4) "4.......the only evidence of rape was the statement of the prosecutrix herself and when this of evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."

rt

33. In Munna Vs. State of Madhya Pradesh, (2014) 10 Supreme Court Cases 254, the Hon'ble Supreme Court has been pleased to held:

"7. We are conscious that testimony of the prosecutrix is almost at par with an injured witness and can be acted upon without corroboration as held in various decisions of this Court. Reference may be made to some of the leading judgments.

8. In Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, this Court held as under (SCC pp. 224- 26, paras 9-10) "9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 26 woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male .

chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on of the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which rt has its own social milieu, its own social mores, its own permissive values, and 1 (1983) 3 SCC 217 Page 5 5 its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical.

10. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault ........ The statement is generally true in the context of the urban as also rural society. It is also by and large ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 27 true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from .

amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the of society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to rt brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 28 unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social Page 6 6 .

stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross of examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."

9. In State of Maharashtra vs. Chandraprakash rt Kewalchand Jain, this Court held as under : (SCC pp. 558-60, paras 15-17) "15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix ?

Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 29 documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that .

they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he of shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated rt testimony of an accomplice. However, illustration

(b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not 2 (1990) 1 SCC 550 Page 7 7 illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration

(b).

16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 30 corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of .

physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who of is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the rt prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 31 motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a .

prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness.

For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

of "It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other rt corroboration may not be necessary."

With respect, the law is not correctly stated.

If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.

17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 32 except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to .

tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and of European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect rt for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape.

Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."

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10. Similar observations were made in State of Punjab vs. Gurmit Singh, as under : (SCC pp. 395- 96, para 8) "8......The courts must, while evaluating evidence, .

remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material of effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies rt are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.

The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook.

The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 34 evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by .

her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has of sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to rt shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial 3 (1996) 2 SCC 384 Page 10 10 credence in every case of rape. 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 given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 35 introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case .

spoken of by the victim of sex crime strikes the judicial mind as probable."

(emphasis in original)

11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in of view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its rt veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused."

34. The Hon'ble Supreme Court of India in Manoharlal Vs. State of Madhya Pradesh, (2014) 15 Supreme Court Cases 587 has held:

"8. Though as a matter of law the sole testimony of the prosecutrix can sufficiently be relied upon to bring home the case against the accused, in the instant case we find her version to be improbable and difficult to accept on its face value. The law on the point is very succinctly stated in Narender Kumar v. State (NCT of Delhi), ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 36 to which one of us (Dipak Misra, J). was a party, in following terms: (SCC p. 178, paras 29 and 21) "20. It is a settled legal proposition that once the statement of the prosecutrix inspires .

confidence 4 Page 5 and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and rt circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.

21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which may lend assurance to her testimony."

(emphasis in original)

9. Having found it difficult to accept her testimony on its face value, we searched for support from other material but find complete lack ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 37 of corroboration on material particulars. First, the medical examination of the victim did not result in any definite opinion that she was subjected to rape. Secondly, Riyaz who was like a brother to the .

victim and thus a close confidant, has not supported the case of the prosecution and has completely denied having met her when she allegedly narrated the incident to him. Thirdly the person who was 5 Page 6 suffering from fever and to whose house she was first taken by the of appellant was not examined at all. Fourthly, the policeman who the victim met during the night was also not examined. Fifthly, neither the brother nor rt any of the parents of the victim were examined to corroborate the version that she had come from the village of her brother and alighted around 10:00 P.M. at Bajna bus stand. Lastly, the sequence of events as narrated would show that she had allegedly accompanied the appellant to various places. In the circumstances, we find extreme difficulty in relying upon the version of the victim alone to bring home the charge against the appellant. We are inclined to give benefit of doubt to the appellant."

35. It is also relevant to refer to the judgment of the Hon'ble Supreme Court in Tilak Raj Vs. State of Himachal Pradesh, AIR 2016 Supreme Court 406, in which the Hon'ble Supreme Court has held:

"19. We have carefully heard both the parties at length and have also given our conscious ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 38 thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the .

time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set of up by the prosecutrix seems to be highly unrealistic and unbelievable.

23. From the aforesaid, it is clear that the evidence rt of the prosecution is neither believable nor reliable to bring home the charges leveled against the appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC. "

36. The Hon'ble Supreme Court in Uday Vs. State of Karnataka (2003) 4 Supreme Court Cases 46 has held:

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false ::: Downloaded on - 15/04/2017 21:53:36 :::HCHP 39 promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given .

by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court of must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has rt its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

22. The approach to the subject of consent as indicated by the Punjab High Court in Rao Harnarain Singh and by the Kerla High Court in Vijayan Pillai has found approval by this Court in State of H.P. Vs. Mango Ram. Balakrishanan, J. speaking for the Court observed: (SCC pp.230-31, para 13) "The evidence as a whole indicates that there was resistance by the prosecutrix and there was no voluntary participation by her for ::: Downloaded on - 15/04/2017 21:53:37 :::HCHP 40 the sexual act. Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation .

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. Whether there was consent or not, is to be ascertained only on a careful study of all of relevant circumstances."

23. Keeping in view the approach that the Court must adopt in such cases, we shall rt now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could.

Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known ::: Downloaded on - 15/04/2017 21:53:37 :::HCHP 41 the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances, .

lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

24. There is another difficulty in the of way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, rt but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such ::: Downloaded on - 15/04/2017 21:53:37 :::HCHP 42 misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed .

earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may of not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellate knew, or had rt reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due couse. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O' clock in the night. It usually happens in such cases, when two young ::: Downloaded on - 15/04/2017 21:53:37 :::HCHP 43 persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a .

promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to rt having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

37. Recently, the Hon'ble Supreme Court in State of Madhya Pradesh Vs. Munna (2016) 1 Supreme Court Cases 696 has held that consensual sex by a girl who is more than 16 years of age cannot be termed as rape.

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38. A perusal of the judgment passed by the learned trial court also demonstrates that all these aspects of the matter have been taken into consideration by the learned trial court and in our considered view .

the findings returned by the learned trial court to the effect that prosecution was not able to bring home the guilt of the accused beyond all reasonable doubt cannot be faulted with. We concur with the findings so returned by the learned trial court. In our considered view also the of material produced on record by the prosecution does not prove beyond reasonable doubt the guilt of the accused.

39. Accordingly, while upholding the judgment passed by the rt learned trial Court, we dismiss the present appeal being devoid of merit.

(Sanjay Karol) Judge (Ajay Mohan Goel) Judge January 11, 2017 (bhupender) ::: Downloaded on - 15/04/2017 21:53:37 :::HCHP