Uttarakhand High Court
Rakesh Kumar Shah vs State Of Uttarakhand on 14 February, 2018
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 186 of 2013
With
Criminal Jail Appeal No. 05 of 2017
Reserved on : 05.01.2018
Delivered on : 14.02.2018
---------------------------------------------------------------
Rakesh Kumar Shah ...Appellant
Versus
State of Uttarakhand ...Respondent
------------------------------------------------------------------------
Mr. Pooran Singh Rawat and Mr. Bhuwan Chand Bhatt,
Amicus Curiae for the appellant
Mr. Sachin Panwar, Brief Holder for the State
Hon'ble Sharad Kumar Sharma, J.
Both appeals under Section 374 of Criminal Procedure Code.
Arising out of judgment dated 19.03.2013, convicting appellant.
Passed by 1st Additional Sessions Judge, Rishikesh, Dehradun in Session Trial No. 86 of 2012, State Vs. Rakesh Kumar Shah.
Arising from Case Crime No. 319 of 2011. An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 2
Offences under Sections 376, 504 and 506 I.P.C.
These appeals arise of the judgment dated 19th March 2013 as rendered in the Sessions Trial No. 86 of 2012 "State Vs. Rakesh Kumar Shah", passed by the Additional Sessions Judge (First), Rishikesh Dehradun. As a consequence of rendering of the impugned judgment dated 19th March 2013, the appellant, who happens to be the natural father of prosecutrix has been held out to be guilty for offences committed by him which are punishable u/s 376 read with section 506 IPC and had been acquitted for the offences punishable under Sections 323 and 504 I.P.C.
2. After conclusion of the trial, the learned Sessions Judge is said to have appreciated the evidence and had come to a conclusion that the offence as leveled against the appellant under Sections 376 and 506 I.P.C. has been established, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 3
and consequently he was sentenced to undergo a rigorous imprisonment for term of ten years and had been imposed with a penalty of Rs.10,000/- and further in an event of default to remit the penalty, he had been directed to further undergo an additional term of rigorous imprisonment for a period of four months. He had also been further sentenced for a rigorous imprisonment for a period of one year for the offences punishable u/s 506 IPC. Both the sentences had been directed to run concurrently.
3. The appellant is in jail. His bail application has been rejected by the coordinate Bench of this Court, while admitting the appeal on 16th April 2013.
4. Heard Mr. Puran Singh Rawat and Mr. Bhuwan Chand Bhatt, Advocates for the appellant and Mr. Sachin Pawar, Brief holder for the State. An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 4
5. Brief backdrop of the case as argued and revealed from records, is that according to the prosecution story, it was on 10th August 2011 that the incident is said to have chanced in between 6:10 p.m. to 6:30 p.m., when the mother of the prosecutrix is said to have heard the voice and shouting of her daughter i.e. the prosecutrix coming from a room and on hearing the voice, she rushed to the room from where the voice was coming and where the incident has chanced and saw that her husband, Rakesh Kumar Shah, appellant in the present appeal, was found in an objectionable position committing rape on her daughter, Km. Shikha. The complainant (Damyanti, wife of the appellant) had submitted during the course of investigation that the prosecutrix, Km. Shikha had informed her that for couple of months together, the appellant was repeatedly committing the offences on her by exerting threat of dire consequences and at times, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 5
even had physically assaulted her to meet his evil objective and physical lust by commission of an offence of rape. She further submitted that the prosecutrix has also informed her that the appellant has threatened the prosecutirx that in case, if she divulges any fact about the incident and of the commission of an offence of rape on her, she would be put to death. Even according to the mother Damyanti, an identical threat was extended to her too also by the appellant, so that the incident may not be brought to the knowledge of relatives, friends and to the public and he may succeed in his ill motive.
6. It is quite normal that on witnessing the said incident, no mother would have seen her husband and that too, a biological father committing the offence of u/s 376 IPC on her own biological daughter. Being this, PW1 being flabbergasted and taken aback by the said incident, she had lodged an FIR through post with the SHO, Kotwali, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 6
Rishikesh (Exhibit paper 53 Ka), informing about the said incident and praying that a relevant investigation and consequent prosecution may be drawn against the appellant-husband. The said FIR was written by Smt. Vandana on 12.08.2011 at 16:00 hrs. in the Police Station, Kotwali, Rishikesh.
7. According to the decipher of the incident made in the FIR, the knowledge to the complainant about the incident which is said to have taken place on 10th August 2011, has been attributed due to the shouting which she heard of her daughter (the prosecutrix), at the time when the offence was being committed on 10.08.2011 by the appellant- husband. It is based on this information that she has taken it as to be the source of knowledge for lodging of the FIR by post of the incident dated 10th August 2011, which was lodged before the SHO, Kotwali, Rishikesh on 12th August 2011 at about 4 P.M. An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 7
8. On the basis of lodging of the F.I.R. on 10.08.2011 at about 4:00 P.M., it is said that at about 6:30 p.m. on 12th August 2011, a medical examination was conducted on the prosecutrix by PW5 Dr Richa Thapliyal, wherein, prior to the conduct of medical examination, it is reported that the prosecutrix is said to have extended her consent to be internally examined by the medical examiner. According to the medical examination report, as conducted by the doctor on the prosecutrix, it has been reported that on the physical examination of the prosecutrix, there was no mark of injury found on any part of the body of the prosecutrix. It was further reported that the prosecutrix was physically well developed; having a height of 5.2 feet; above 48 kg of weight, breast was fully developed and had all the physical developments, which a young girl at this age is supposed to have.
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9. In the report thus submitted on 12th August 2011, it has been observed by the medical examiner that on examination of the private parts of the prosecutrix, it was found that pubic hair was present, clothes were not stained; the uterus was normal; though hymen was reported to be found torn and had a granulated margin. There was no bleeding and no discharge of any fluid from vagina on being touched at the time of medical examination.
10. On scrutiny of the report, it was found that the vaginal slides were taken and sent for the pathologists to SPS Hospital, Rishikesh for the examination of existence of spermatozoa and also advised to conduct an x-ray on the knee and the elbow of the prosecutrix and also recommended for Radiological examination to determine the age in accordance to the biological standards. An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 9
11. The radiological examination, as conducted at SPS Hospital, Rishikesh, it has been opined by the doctors in their report that the vagina freely admits two fingers and hymen was torn and vaginal fluid has been sent to the pathology and to the radiologist for examination of the age of prosecutrix.
12. The samples thus sent as reported in the medical report dated 12th August 2011 was examined on 24th August 2011 and, it has been reported in supplementary medical report of the medical examiner, PW5 Dr Rihcha Thapliyal that on examination of the slides "there was no spermatozoa has been seen either dead or alive"
and according to the x-ray reports of knee and elbow, her age has been opined to be of 19 years. It has been opined by the medical examiner, Dr Richa Thapliyal that:-
i) no definite opinion regarding rape can be given An evaluation version of novaPDF was used to create this PDF file.
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ii) she, the prosecutrix, was habitual to penetration
13. The prosecutrix in her statement as recorded u/s 164 Cr.P.C., though the statement made under Section 164 Cr.P.C. may not be treated as to be reliable and credible piece of evidence, until and unless, the facts stated there are supported by other evidences on record before the Trial Court. Much credence cannot be placed but in the present case, looking to the statement of prosecutrix with medical examination report, it could be read so as to come to a rational conclusion about the commission of offence and fixation of criminal liability. In Case Crime No. 319 of 2011, as registered before the Court as S.T. No. 86 of 2012, she had stated that one of such incident has happened in May 2011, when the appellant is said to have sent her mother to Holy Ganges and at about 6:00 to 6:30 p.m., when she had left, then his father (appellant herein) has "again" committed rape on her by exerting pressure, meaning thereby, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 11
the act of commission of rape by father, it was recurring as per statement of prosecutrix. She further submitted in her statement u/s 164 Cr.P.C. that she was frequently threatened by accused of dire consequences in case if she divulges any information to her sisters and her mother. She submitted that in May 2011, a physical relationship was established by her father by force.
14. The prosecutrix also recorded a statement of fact to the effect also that in the month of June 2011, she had gone to her Grani's (Nani) place at Neelkanth, and on her return on 27th June 2011, her father again sent her mother to the Holy Ganges and had committed a rape on her (i.e. the prosecutrix). The prosecutrix submitted that taking advantage of the fact that she used to reside alone in the residence, her father had taken advantage of the solitude, committed offence on number of occasions on her. She also deposed that when the An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 12
crime was committed on 10th August 2011, the modus operandi as adopted by the appellant on that day also was that he has sent the wife to river Ganges but on account of there being fortunate rain, complainant-wife returned back earlier to the home at about 6:40 p.m and had witnessed the said incident.
15. According to the site plan as prepared by the Investigating Officer on 19th August 2011, the place of occurrence of offence has been shown to be the house bearing number D-194. The Investigating Officer, after holding an investigation on the FIR No. 169 of 2011 dated 12th August 2011, registered as Case Crime No. 319 of 2011 and had submitted the charge-sheet against the appellant being charge-sheet No. 160 of 2011 dated 27th August 2011. It has been observed in the charge-sheet that taking into consideration the statement of witness, the Spot Inspection Report, the Medical Report and the statement of the An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 13
prosecutrix as recorded u/s 161 and 164 Cr.P.C., the occurrence of incident stood established and recommended for trial and punishment.
16. In support of the prosecution case, the list of witnesses, which was produced before the learned Trial Court included Damyanti, (the complainant and the mother of the prosecutrix and the wife of the appellant) as PW1. The prosecutrix herself had appeared and recorded her statement before the learned trial Court as PW2. The Sub Inspector, Bhawna Kainthula, who carried on the investigation, appeared as PW3. Rakesh Kumar Bhandari was produced as PW4, who was a teacher by profession and teaching in Guru Ram Rai Public School, Rishikesh, in which, the prosecutrix, Km. Shikha had studied as a witness of age of prosecutrix. Dr Richa Thapliyal appeared as PW5 and Smt. Menu Kalra, the Principal of Divine Academy, Veerrbhadra Road, Rishikesh as PW6.
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17. The accused in his defence has produced Km. Priyanka Shah, a 7 years' old daughter as DW1 and he, himself recorded his statement as DW2.
18. In the statement as recorded by the appellant u/s 313 Cr.P.C. before the learned Additional District Judge, Rishikesh on 2nd March 2013, while answering the question posed to him, he has submitted that he has been falsely implicated in the incident because of the misunderstandings, which he was having with his wife (complainant) for a long time, and denied to have committed any rape on the prosecutrix. He, while answering to the questions u/s 313 Cr.P.C. has also denied the fact that ever he has used any abusive language or had extended any threat of life either to the complainant Damyanti or to the prosecutrix. He denied the propriety of the record and submitted that he has been wrongly implicated at the behest of his wife, with whom certain domestic disputes were going on.
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19. The fact of the age of the prosecutrix has been endeavoured to be denied by the appellant in his statement recorded u/s 313 Cr.P.C., when he alleged the date of birth as to be 16th May 1998 but the said denial cannot be taken as to be true for the reason that in accordance with the transfer certificate, as issued in favour of the prosecutrix by Guru Ram Rai Public School, Rishikesh, her date of birth as per school records has been recorded to be as 16th May 1998, which was also corroborated from the Admission Form as submitted before the Divine Academy, Veerbhadra Road, Rishikesh which is on record as paper No. 29ka and 37ka respectively.
20. This declaration of the certificate of date of birth has been initialled by the appellant as father of the proxecutrix himself. Thus, on the scrutiny of the documents, age of the prosecutrix comes around to be about 13 years of age on the date of the incident i.e on 10th August, 2011 though, on An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 16
the medical examination she is shown to be of 19 years of age. On scrutiny of the statement of Dmyanti PW1, it is almost the narration of the facts which she asserted in the FIR as lodged by her on 12th August 2011. In continuation of her statement, PW1 which started on 16th January 2012 and was continued on 12th January 2014, PW1 complainant has made a statement under Section 200 Cr.P.C. to the effect that she was married with the appellant in 1996 but after some years of marriage, despite their being three children born out of the wedlock, there had arisen a dowry dispute between the husband and the wife which was later on decided on the basis of a compromise and the appellant was exonerated. It has also revealed from a statement of PW1 that there had been a proceeding between the appellant and the complainant-wife u/s 125 Cr.P.C. but she submitted that ultimately a compromise was An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 17
entered into and she started living together with her husband.
21. PW1, Damyanti, in her statement had further submitted that in the written statement as filed by the appellant in the proceedings u/s 125 Cr.P.C on 12th December 2000, the appellant has leveled an allegation against PW1 about her chastity and it was after the compromise, she submitted that two children were born and the youngest of their being Mahima, who lives with her.
22. In her statement as recorded by PW2, the prosecutrix, she also supported the incident of 10th August 2011 and reiterated her statement that the appellant used to enter into physical relationship by force, even prior to 10th August 2011, which can be co-related by the statement of the prosecutrix recorded u/s 164 Cr.P.C., as well as that of PW1, though the statement as recorded u/s 164 Cr.P.C. may not be a corroborated as to be a credible piece An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 18
of evidence, but once it is read with the statement of PW2 as recorded before Court, it shows that she has deposed that the incidents of physical relation had occurred even prior in time, i.e. 10.08.2011 when the appellant is said to have committed the offence of rape on her earlier by exerting pressure. She reiterated the incidence of May and June 2011. In her statement she has recorded the following facts:-
**nknk nknh ls ge vyx gSaA nknk nknh dk ?kj esjs ?kj ls vk/ks ?kaVs iSny gksdj iM+rk FkkA esjh nks cgusa Hkh esjs lkFk ?kj ij jgrh FkhA mlh ?kj ij jgrh FkhA eq>s irk ugha fd eEeh nknk nknh ds lkFk D;ksa ugha jgrh FkhA eSus viuh eka dks nknk nknh ds ;gkWa tkrs gq, Hkh ugha ns[kkA esjs ekek lrh"k esjs ?kj ugha vkrs FksA esjs ikik o esjs ekek lrh"k ds laca/k [kjkc Fks blfy, os ugah vkrs FksA esjs firk o eka dk esjs lkeus >xM+k ugha gksrk Fkk vkSj esjh eka us eq>s ugha crk;k fd mlds laca/k firk ds lkFk [kjkc gSaA eq>s ;g irk gS fd esjh eEeh o ikik ds chp dbZ eqdnesa pys gSaA ;s Hkh lgh gS fd eSa o esjh eka esjs firk ls dkQh le; vyx Hkh jgs FksA esjs lkeus mudk >xM+k ugha gksrk Fkk ijUrq ;g lgh gS fd muesa vkil esa >xM+k gksrk Fkk blfy, vyx jgs FksA eq>s ekywe ugha fd ikik eEeh ds mij jksd&Vksd djrs gksa bl dkj.k >xM+k gksrk gksA**
23. Apparently, on scrutiny of the statement as recorded by the prosecutrix, there had been certain misunderstandings between the complainant as An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 19
well as the other family members, in-laws and the appellant and that is why the prosecutrix has recorded her statement that her mother never used to visit the home of the grandparents of the prosecutrix and further she has recorded her statement that there is no cordial relationship of accused with the maternal uncle of the prosecutrix, namely Satish, and also the fact that the appellant used to object into the activities of the complainant-wife. She further recorded her statement that she wants to live with her mother and also even the complainant (mother of the prosecutrix) does not want to live with the appellant-husband.
24. The statement of PW3, Bhawna Kainthula has supported the investigation version, which was conducted by her after 12th August 2011 and charge-sheet submitted by the investigating officer on 27.08.2011. She supported the report and the charge-sheet submitted by her against the An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 20
appellant, whereby she has submitted that the prima facie incident as alleged in the complaint/FIR No. 169 of 2011 dated 12th August 2011 is shown to have been established. So far as the statement of PW4 (Rakesh Kumar Bhandari) is concerned, who is a teacher of Guru Ram Rai Public School, Rishikesh was only for the purpose to establish the age of the prosecutrix, as per the records available in the said Institution. PW4 Rakesh Kumar Bhandari supported the recording the date of birth of the prosecutrix in the school records to be 16th May 1998, based on the records which were carried forward from the earlier School i.e. Divine Academy, Veerbhadra Road, Rishikesh.
25. What will be relevant for the consideration of the present appeal is the statement of PW5, Dr. Richa Thapliyal, who is a doctor, and who has physically examined the prosecutrix. On scrutiny of the medical report and statement of PW5 Dr. An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 21
Richa Thapliyal, following conclusions have been drawn by her:-
i) that she was in a conscious state
when she was brought for medical
examination;
ii) On medical examination, no injury
was found on any part of her body
including private parts;
iii) The breast and pubic hair was fully
developed;
iv) On an internal examination, no lump
was found;
v) It was reported that the hymen was
torn;
vi) Granulated margins in the vagina
was not present;
vii) Slides sent for the examination, no
spermatozoa was found;
viii) The vagina was permitting the entry
of two fingers and;
ix) She expressed that no opinion for
rape could be established and the
prosecutrix was habitual of
penetration.
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26. Based on the aforesaid evidence and on its scrutiny, the learned First Additional District and Sessions Judge, while adjudicating Sessions Trial No. 86 of 2012 "State vs Rakesh Kumar Shah" by its judgment dated 19th March 2013 had convicted the appellant u/s 376 read with Section 506 IPC and acquitted him for an offence u/s 323 and 504 IPC. The learned First Additional District and Sessions Judge while hearing on the sentence has imposed the following punishments:-
**vkns"k vfHk;qDr jkds"k dqekj "kkg dks /kkjk 376 Hkkjrh; n.M lafgrk ds vkjksi esa 10 o'kZ ds lJe dkjkokl rFkk 10]000@& :i;s vFkZn.M ls nf.Mr fd;k tkrk gSA vFkZn.M vnk u djus ij vfHk;qDr dks pkj ekg dk vfrfjDr dkjkokl Hkqxrku gksxkA vfHk;qDr dks /kkjk 506 Hkkjrh; n.M lafgrk ds vkjksi esa ,d o'kZ ds lJe dkjkokl ls nf.Mr fd;k tkrk gSA nksuksa ltk,a lkFk&lkFk pysaxhA vfHk;qDr dks /kkjk 323 o 504 Hkkjrh; n.M lafgrk ds vkjksi esa nks'keqDr fd;k tkrk gSA vfHk;qDr dks ltk Hkqxrus gsrq ltk;koh okj.V cukdj ftyk dkjkxkj izsf'kr fd;k tk;sA bl fu.kZ; dh ,d izfr vfHk;qDr dks fu%"kqYd iznku dh tk;sA**
27. Hence the present Appeal.
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28. On scrutiny of the judgment and the evidence and on its appreciation and reasoning as extended by the learned Additional District and Sessions Judge is that the learned Trial Court has recorded a reasoning that in cases, where the offence alleged is that of rape, it is merely the satisfaction of the Court to act on the evidence of the prosecutrix, and for the said purpose, no rule or practice is required to be followed to look for corroboration of the incidents.
29. Learned District and Sessions Judge has also recorded a finding to the effect that on scrutiny of the statement of PW1, the complainant/mother, she has supported the incident which has occurred on 10th August 2011, wherein she has witnessed the commission of an offence by the appellant. The Trial Court observed that the statement of PW1 was also supported by the statement of the prosecutrix as PW2 for holding that an offence was committed. The defence case was that no reliance An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 24
can be placed on the statement as recorded u/s 164 Cr.P.C. of the prosecutrix and that of the complainant as there happens to be a massive contradiction with regard to the statement that the complainant having gone to the Holy Ganges after having been sent by the appellant and there happens to be a conflict pertaining to the time of going to the river Ganges and her return from there to the place of occurrence. The contradiction which has been recorded and taken into account by the Learned District and Sessions Judge was that PW1 has stated that she returned to the place of incident at about 7 p.m. on 10th August 2011, whereas in the statement of PW2 it has been recorded that the prosecutrix has made a statement that her mother PW1 has returned at the place of incident at 6 p.m.
30. The inference which has been drawn by the learned trial Court is that irrespective of the time of return of the complainant to the place of incident, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 25
it will not have any material consequence and bearing on the case, for the reason that at least in either of the circumstances, irrespective of the time on which the complainant returned, at least commission of an offence of rape having been committed by the appellant, would be established by other corroborating evidences. On scrutiny of the statements of the prosecutrix, pertaining to the narration of the incident of 10th August 2011, she submitted that on the date of the incident, her younger sister was present at home along with her mother and when the appellant returned home at 4:00 p.m. food was served to the appellant by the complainant (mother of the prosecutrix) and it was then only she was asked by the appellant to go to river Ganges. The prosecutirx also admits the fact that at that point of time when the incident occurred, she was sitting at veranda and she was pushed into the room by the appellant by force against her wishes and by surprise.
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31. On scrutiny of the findings as recorded by the learned trial Court while considering the cross examination of PW2, she admitted the fact that on 10th August 2011, a dispute has arisen between the appellant and the complainant PW1. On account of which, it is further an admitted case of PW2 that the appellant (her father) left the home and returned back after two hours. But, what is surprising is that when the incident was witnessed by the complainant on 10th August 2011 is alleged to have chanced between 6:00 p.m to 6:30 p.m, it does not repose confidence to the prosecution story, for the reason that according to the statement of PW2, her mother is said to have returned at 7:00 p.m. Let us presume that irrespective of the fact pertaining to as to what impact of return of complainant and time would have on the incident, what is relevant is that a mother, after seeing her daughter being raped by her husband between 6:00 p.m to 6:30 p.m. and An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 27
she being the sole eyewitness, why she did not immediately lodged an FIR. There is another aspect which has to be taken into consideration is that admittedly, according to the statement of PW2, after the fight between the appellant and the complainant-wife on 10.08.2011, i.e. date of incident, PW2 state that the appellant-husband has gone out of the house and returned after two hours, there is yet another doubt on the propriety of the incident as to why the complainant-wife who was eye witness of incident or the prosecutrix herself has not lodged the first information report/complaint within those two hours, available to them when the appellant was out of the home.
32. There is another doubt which has been created according to the prosecution story, which has been developed by the prosecution is that pertaining to the incident of commission of rape of the prosecutrix in June 2011, she admits in her statement that the prosecutrix lived along with the An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 28
family used to take food together. But, yet again, what could be witnessed on scrutiny of statement of this witness is that there was no complaint lodged by the prosecutrix either of the incident of May 2011 or that of June 2011. Even on the scrutiny of the statement of PW1, it could further be arrived at that it is not the case of Damyanti PW1 that at any point of time, prior to 12th August 2011, when the FIR was lodged for first time, there had been any efforts made by the complainant-wife (PW1) or even by the prosecutrix (PW2) to lodge any complaint or FIR before any competent authority of the prior incident.
33. This very fact that earlier incidents were not reported to as no FIR was lodged, they do not repose confidence to the incident of 10th August 2011 for the reason that by that time, the appellant and the complainant were already in a discordial relationship as husband and wife and there had been number of litigations going and An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 29
pending inter-se between them till it was compromised at a later stage. Further, a doubt which could also be created is that it is an admitted case and as apparent from the evidence and statement of PW2 also that the complainant was not enjoying cordial relationship with the parents-in-law and the husband-appellant too did not enjoy the cordial relationship with his brother- in-law (Satish). Hence, the surrounding circumstances of lack of cordial relationship could also lead to an inference that a complaint as lodged on 12th August 2011, was also cannot be ruled out to be the outcome of revenge. Now, on the scrutiny of the contents of the FIR dated 12th August 2011, it is an admitted case, according to the statement of PW1 and PW2 that when the offence was being committed by the appellant, both the PW1 and PW2 submitted that the prosecutrix was shouting, if there was a shout, a reasonable corollary which follows is that, there is bound to be a retaliation, An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 30
and in such type of an offence which is being committed against the wishes, in hot heat of action which offence is being committed. If there is a retaliation, then there is bound to be certain physical injuries on the body of the prosecutrix, which is not there in the instant case. Even it is not the case of prosecution about the injuries being suffered by prosecutrix, which have been settled by the judgment too for the reason that even the trial which has been concluded by the impugned judgment has exonerated the appellant u/s 323 and 506 IPC, which too shows that there was no altercations or injuries caused on the prosecutrix. In that event, the case as built up that PW2 got knowledge of incident on hearing the shouting of prosecutrix cannot be believed with.
34. This Court, being conscious about the evidence, which was led by the prosecution Balbir Singh, PW4 and Meen Kalra, the Principal/ PW6 to show that the date of birth of the prosecutrix as An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 31
recorded in the school records of the prosecutrix is 16th May 1998, on its calculation, on the date of incident, she could be said to be of about 13 years of age and in that eventuality, even her statement if it is found that there were certain lacunas, could not be taken as to be of determinable piece of evidence, but the medical examination report as conducted by Dr. Richa Thapliyal PW5 cannot be brushed aside and in her report and the statement, apart from the fact that the age of the prosecutrix has been shown to be of 19 years of age. It further goes to show that according to the medical report and the slide tests which was sent to the radiologist there was no sperms/cells present either dead or alive and it has come in the medical report that no opinion of rape was established and furthermore, it has also come on record that the prosecutrix was habitual of penetration and opined the non-commission of the offence. The medial report observes that prosecutrix was habitual of An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 32
penetration, then why FIR was not lodged by her earlier, or why she has not narrated the incident to her mother who was not in good relation with accused. Records do not have any birth certificate issued by competent authority on record, normally parents when they admit child in school, they record lesser age, anticipating a future in career. Thus, date of birth as recorded cannot be taken to be absolute proof of age and would not override the age determined by medical experts which is more based upon a scientific method, that too when the age as reported by medical experts was not denied by the prosecution.
35. The reasoning which has been assigned by the learned Court below is on the scrutiny of the statement of the prosecutrix u/s 164 Cr.P.C., it has been settled by the Courts of law that statement under Section 164 Cr.P.C., it cannot be treated as to be a conclusive and exclusive piece of evidence and the analogy, which has been given by An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 33
the learned trial Court to the effect that for the purposes of establishment of an offence of rape, the statement of prosecutrix is sufficient, there is no doubt about the said proposition, but the statement has to be taken into consideration in the light of the so-called age of the prosecutrix because even at age of 13 years, a child in this modern era is quite aware of surrounding and consequences, which has been sought to be pressed upon by the prosecution on the statement of PW4 and PW6. Hence the statement of minor ought not to be taken as a conclusive proof in view of that fact if it has to be read with the medical report, as submitted by Dr. Richa Thapliyal PW5.
36. The view taken by the learned trial Court that minor contradictions in the statement of prosecutrix would not have any bearing on the entire incident and has to be read with the other surrounding circumstances on record. Apparently, the contradiction which has been dealt by the An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 34
learned trial Court was pertaining to the time at which the complainant returned from river Ganges, whether it was 6:00 pm or 7:00 pm. According to the defence version, which has come on record, there is doubt about the time which PW1 returned, heard the voice and saw the incident. But as per PW1 and PW2, there being a dispute between husband and wife on 10.08.2011, i.e. date of incident, husband leaving the home and then too lodging the FIR during the intervening period of two hours, creates a doubt about the contradiction in the statement of prosecutrix and that of complainant.
37. The commission of an offence of rape has always to be appreciated with the existence of consent, looking to fact that admittedly the incident, which has occurred earlier, there had been no complaint or FIR lodged by PW1 or PW2 which itself, creates a doubt about the incident and its propriety. Even according to the site plan of An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 35
the place of occurrence, where the offence is said to have been committed, it is said that rape has been committed in house No. D-194, which was an accommodation of the appellant, where he occasionally visited, which has an occupancy of only one room with a kitchen and a toilet. Whereas, on the other hand, according to the prosecution story and narrations made in the statement and evidence, the house in which the offence was committed, it shown to have two rooms, two kitchens and on the scrutiny of paper number 45ka/9 which is the site plan of the place of incident, learned trial Court has held that the house has got only one room, kitchen and a veranda. The learned trial Court, while scrutinizing the statement of the appellant to the effect that for the purposes of scrutinizing the exact place where the incident has occurred, he has made a statement that he occupies the adjoining house also, hence there is a doubt about the exact place An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 36
of occurrence of the incident cannot be accepted for the reason that it is no one's case either of complainant or prosecution and even according to the investigating officer's report, the offence is said to have been committed in house number D-194 hence even if the appellant's statement that he occupies the adjoining house is taken into consideration, then too, it cannot be believed that the offence was committed in the adjoining house, which would be contrary to the pleadings and the evidence on record.
38. This aspect of the place of commission of an offence whether it is from House No. D-194 or the adjoining house is still doubtful, because according to the statement of the prosecutrix, the entire family, which constitutes the wife, husband and other sisters of the prosecutrix were living in it. The defence at the trial stage has also argued about the impact of the delayed lodging of FIR. While dealing with the said issue, the learned trial An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice. 37
Court was rather impressed upon the fact that there might chanced a delay in lodging the FIR of the incident of u/s 376 IPC, because, normally, in rape cases, the victim always suffers from a trauma and also from the likelihood of the social defame and taboos, attached to the incident and hence there may be a situation where a lady, who is the victim of the sex crime, may also refrain from thinking it over and over again before lodging an FIR, whether to lodge it or not so as to protect her self-respect and social honour.
39. This may, at times be true, but not always, particularly, when in the instant case, admittedly, according to the prosecutrix, there had been earlier incidents also which have been corroborated by the medical report that the prosecutrix was habitual of having sex, hence this notion that it would be tarnishing her social image cannot be drawn for defending the issue of the effect of delayed lodging of FIR.
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40. Thus, under these circumstances and for the reasons assigned above, the sentence and punishment, as imposed on the appellant by the judgment dated 19th March 2013 is set aside and quashed and the appellant is exonerated of an offence u/s 376 and 506 IPC. Consequently the appeals stand allowed. The appellant is in jail. He shall be released forthwith, if not wanted in any other case.
41. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months.
(Sharad Kumar Sharma, J.) 14.02.2018 Mahinder/ An evaluation version of novaPDF was used to create this PDF file. Purchase a license to generate PDF files without this notice.