Himachal Pradesh High Court
Anand Gopal vs Anand Gopal on 8 September, 2022
Bench: Sabina, Sushil Kukreja
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF SEPTEMBER, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No. 401 of 2019
Between:-
ANAND GOPAL,
SON OF SH. SATGURU PARMANAND,
RESIDENT OF WARD NO.7, GHANAL,
TEHSIL & DISTRICT HAMIRPUR, H.P.
r ......APPELLANT
(BY MS. SHRADHA KAROL,
LEGAL AID COUNSEL)
AND
STATE OF HIMACHAL PRADESH
......RESPONDENT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL )
RESERVED ON:23.08.2022
Decided On:08.09.2022
This petition coming on for judgment this day,
Hon'ble Mr. Justice Sushil Kukreja, delivered the following:
JUDGMENT
Instant criminal appeal filed under Section 374 of the Criminal Procedure Code, 1973, lays challenge to Judgment of conviction and order of sentence dated 20.05.2019, passed by learned Sessions Judge, Hamirpur, ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 2 H.P. in Sessions Trial No. 72 of 2018, titled as State of Himachal Pradesh Vs. Anand Gopal, whereby the appellant .
(hereinafter referred to as ''accused"), was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 6 months for the commission of offence punishable under Section 376 of Indian Penal Code (IPC). He was further sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a period of 3 months for the commission of offence punishable under Section 506 of IPC and out of the fine so realized, an amount of Rs.40,000/- be paid as compensation to the victim.
2. Brief facts of the case are that the husband of the prosecutrix is running a jewellery shop and they are having two sons. The accused used to perform Satsang in the area where the prosecutrix was residing. The prosecutrix had seen the accused in the house of her friend when he was performing Satsang about 2-3 years prior to the incident. The accused told the prosecutrix that he wanted to perform Satsang in her house, however, she told him that she had to talk to her ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 3 husband about this. On this, the accused asked her to bring her husband and when she brought him in the evening, many .
people had gathered in the house of her friend, where the accused was performing Satsang. The accused asked the husband of the prosecutrix that he would perform Satsang in his house, to which her husband agreed. The accused had performed first Satsang in their house on July, 2016 and thereafter performed second Satsang in their house in the year 2017. The prosecutrix and her husband used to r treat the accused equivalent to God and had faith upon him. The accused had visited the house of one Ranjit Singh, living in village of prosecutrix to perform Satsang on 10.06.2018 and thereafter visited the house of prosecutrix on 11.06.2018 at 9.30 A.M. with an intention to stay there for 2-3 days. At that time the husband of the prosecutrix had gone to his shop and their son was sleeping. She asked the accused to sit in the drawing room, but he told her that he would like to take her test and when prosecutrix replied in affirmative, accused inquired whether there were any CCTV cameras in the house, on which, she replied in negative. Thereafter, accused asked the prosecutrix to accompany him to the ground floor for taking her test where he put his hand on her head, slapped her and ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 4 also told her that she should not get scared as God himself was going to bestow in her person. Accused also caught hold .
of her arm, upon which, she was confused and could not understand as to what kind of test was to be taken. The prosecutrix was told by the accused to remain silent during the test by saying that otherwise, there would be a catastrophe and her house would be ruined and thereafter he pushed her on the bed and raped her. She was also told not to reveal this incident to any person, otherwise, she would become a pauper. After this incident, the prosecutrix got mentally upset and fell into depression, as a consequence of which, she was unable to tell this incident to any person due to the threat of catastrophe. She also lost her appetite, upon which, her husband started making inquiries and took her to the doctor.
When she was repeatedly questioned, she narrated the entire incident to her husband. Thereafter, prosecutrix had filed an application before the police, on which, FIR was registered and investigation was conducted. The police started investigation and prosecutrix was got medically examined. At the time of her medical examination, doctor found that there were no injuries on the person of the prosecutrix and the possibility of sexual intercourse could not be ruled out. Thereafter, the accused ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 5 was arrested. His medical examination was also conducted by Dr. Deepika, who found no injury on his person and had issued .
MLC. According to her, there was nothing to suggest that the accused was incapable of performing sexual intercourse.
During the investigation, statements of the witnesses were recorded and place of the incident was also identified by the accused. Site plan was prepared. Statement of the victim under Section 164 Cr.PC was recorded before Judicial Magistrate 1st Class (III) Hamirpur.
r The final opinion was issued by Dr. Deepika, in which, it was shown that recent sexual intercourse had taken place with the victim and there was nothing to suggest that the accused was incapable of performing sexual intercourse. The statements of witnesses were recorded as per their version and after completion of the investigation, challan was prepared and presented before the court of learned Sessions Judge, Hamirpur, who after having found prima facie case against the accused, charged him under Sections 376 and 506 IPC, to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined as many as 16 witnesses. Statement of accused was recorded under Section 313 Cr.P.C. wherein, he denied ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 6 the case of the prosecution in toto and claimed himself to be innocent. In his defence, the accused had examined six .
witnesses.
4. On the basis of evidence led on record by the prosecution, the learned trial Court held the accused guilty of his having committed offence punishable under Sections 376 and 506 of IPC and sentenced him as per description given hereinabove.
5. Being r to aggrieved and dissatisfied with the judgment of conviction and order of sentence, passed by the learned trial Court, accused approached this Court, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
6. Learned Legal Aid Counsel for the appellant contended that the statement of the prosecutrix does not inspire confidence as the prosecution case suffers from material contradictions and discrepancies. She further contended that there is a delay in lodging the F.I.R., which is fatal to the case of the prosecution, as such, the learned trial Court had committed illegality in convicting the accused. On the other hand, learned Deputy Advocate General, supported the judgment of learned trial Court and submitted that learned ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 7 trial court has rightly convicted the appellant on the basis of proper appreciation of the evidence.
.
7. We have heard learned Legal Aid counsel for the appellant and learned Deputy Advocate General for the State and also gone through the record minutely.
8. The prosecution case mainly rests upon the statement of prosecutrix, who appeared in the witness box as PW-5. The prosecution has tried to seek corroboration from the statements of PW-4, husband of the prosecutrix, PW-8, friend of the prosecutrix and PW-9, son of the prosecutrix.
9. The prosecutrix (PW-5) deposed that she knew the accused as he was her Guru and she had seen the accused in the house of her friend, where he was performing Satsang. She further deposed that the accused told her that he would perform Satsang in her house and on this, she talked to her husband. The accused asked her husband that he would perform Satsang in his house, to which her husband agreed and the accused performed first Satsang on 26.07.2016 and stayed in their house as Guru for 4 days. She further deposed that the accused also performed Satsang w.e.f. 30th April, 2017 till 2nd May, 2017 in her house. On 10.06.2018, the accused visited the house of one Ranjit to perform Satsang and told ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 8 the prosecutrix that due to the death in the house of someone, he wanted to reside in their house for 2-3 days. Her husband .
went to bring the accused on 11.06.2018 and brought him at 09:00-9:30 A.M. alongwith one Lucky, who was his Sevadar.
Thereafter, the husband of the prosecutrix left for his shop and her elder son also went outside with his friends, but her younger son was at home. The accused sent Lucky to Hamirpur for some work. At 1:30-2:30 P.M., the accused was sitting in the drawing room and called the prosecutrix by telling her that he wanted to take her test. Thereafter, she accompanied the accused to the ground floor, where the accused caught hold of her arm, pushed her on the bed, opened her Salwar without her consent and raped her. The accused also threatened to kill the prosecutrix in case of disclosure of this incident to any person. The prosecutrix remained in a terrified state and also reduced intake of her food. On inquires made by her husband, she revealed this fact to him on 29.07.2018. Thereafter they consulted various people in the village who were disciples of the accused and she alongwith her husband went to the Police Station and submitted an application, Ext. PW-5/A, on the basis of which, an F.I.R. was registered against the accused. The prosecutrix ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 9 was also got medically examined on the same day.
10. PW-4, husband of the prosecutrix, deposed that .
his wife used to remain terrified in the month of June, 2018 and she also reduced her meals. On inquiry, the prosecutrix revealed to him that the accused had raped her on 11.06.2018 in the bedroom on the ground floor. He further deposed that the accused had threatened to kill her in case of disclosure of this fact to any person. He consulted various persons and thereafter his wife filed the complaint on 09.08.2018.
11. PW-8, friend of the prosecutrix, deposed that she knew the accused, who used to perform Satsang since 13.05.2016. She further deposed that the accused used to perform Satsang every month on second Sunday. On 30.07.2018, the accused called her telephonically and asked her to inquire about the health of husband of the prosecutrix as he appeared to be sick. The accused called her 3-4 times, after which she switched off her mobile phone. Before she switched off her mobile phone, she received a call from the prosecutrix, who asked her to visit her house When she visited the house of the prosecutrix, she told her that the accused had raped her on 11.06.2018.
::: Downloaded on - 08/09/2022 20:09:31 :::CIS 1012. PW-9, son of the prosecutrix, deposed that on 11.6.2018 he woke up at 10 A.M. as he studied during the .
night and saw that the accused was sitting in the drawing room. He further deposed that his mother was in the kitchen and thereafter he again slept.
13. The appreciation of law on the evidence of the prosecutrix and corroboration thereof has been settled by the Hon'ble Supreme Court in to a number of authoritative pronouncements. It is by now well settled that conviction for an offence of rape can be based upon the sole testimony of the prosecutrix, if the same is found to be natural, consistent and worthy of being relied upon. However, if the evidence seems to be of doubtful nature, then the Court must look for assurance, if not corroboration.
14. In Dalip and another Vs. State of M.P. (2001) 9 SCC 452, the Hon''ble Apex Court has held that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. The relevant portion of the aforesaid judgment reads as under:-
"12. The law is well-settled that prosecutrix in a ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 11 sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the .
admissibility of corroboration should be present to the mind of the Judge. In State of H.P. Vs. Gian Chand, on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other."
15. In Sudhansu Sekhar Sahoo vs. State of Orissa (2002) 10 SCC 743, Hon'ble Apex Court has held that the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the court. The relevant para of the aforesaid judgment is reproduced as under:-
"18. It is well settled that in rape cases the convic-
tion can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the court. The vic-
tim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. How-
ever, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evi- dence of the victim may be supported by such corroborative material."
16. In Aman Kumar and another vs. State of Haryana (2004)2 Crl. L.J. 1399, Hon'ble Apex Court has held that a ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 12 prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.
.
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 would lend assurance to her testimony. The relevant portion of the aforesaid judgment reads as under:-
r to "5. It is well settled 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 without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circum-
stantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accom-
plice would suffice."
17. In Rai Sandeep alias Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, the Hon'ble Apex Court has held that there should be consistency in the statement of sterling witness right from the starting point till the end, namely, at the time when the witness makes the initial statement and ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 13 ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There .
should not be any prevarication in the version of such a witness. The relevant para of the judgement reads as under:-
"In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 14 the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the .
offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
18. In Mohd. Ali alias Guddu Vs. State of Uttar Pradesh, (2015) 7 Supreme Court cases 272, the Hon'ble Apex Court has held that a conviction can be based on sole testimony of prosecutrix. However when a Court, finds it difficult to accept the version of the prosecutrix, because it is not irreproachable, then there is a requirement for search of such direct or circumstantial evidence, which would lend assurance to her testimony. The relevant para of the judgment is as under:-
"......There can be no iota of doubt that a conviction can be based on sole testimony of prosecutrix, even without corroboration, if it is unimpeachable and beyond reproach. Testimony of a prosecutrix can be accepted without any corroboration in material particulars, for she has to be placed on a higher pedestal than an injured witnesses. However, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix , because it is not irreproachable, then there is a requirement for search of such direct or circumstantial evidence, which would lend assurance to her testimony."
19. Therefore, the testimony of the prosecutrix is liable to be considered in the light of the aforesaid proposition ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 15 of law laid down by the Hon'ble Supreme Court. The careful scrutiny of the testimony of the prosecutrix reveals that the .
accused was sitting in the drawing room of her house at 1.30- 2.30 p.m. after taking his meals and called the prosecutrix and said that he wanted to take her test. Thereafter, he slapped her and asked her to visit the ground floor. On his asking, she accompanied him to the ground floor, where he caught hold of her arm, pushed her on the bed, opened her Salwar without her consent and committed rape. Her younger son, who was studying in 10th class was also present at home at that time.
The prosecutrix admitted in her cross-examination that her husband returned home on that very day at about 3:00 P.M and at that time, the accused was present there, who had also stayed in her house on 11.06.2018 as well as on 12.06.2018 and left on 13.06.2018. She also admitted that shop of her husband was at a distance of 50-100 meters and the house of a teacher was at some distance from her house. The house of a retired army official was towards left side and the house of a retired nurse was towards the front side of her house.
However, the prosecutrix has failed to explain as to why she had not raised any alarm and sought help from her son, who ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 16 was very much present in the house at the time when the accused had committed rape with her. Admittedly, there are .
various houses situated around the house of the prosecutrix and had she raised hue and cries, her neighbours would have definitely come for her rescue. The prosecutrix has also failed to explain as to why she had not disclosed the incident to her husband when he had returned home at 3:00 p.m. immediately after the incident.
This version of the prosecutrix does not stand to logic and it is against the human conduct and behaviour because if an adult lady is raped by someone in her own house, then her very first reaction would be to raise alarm and to disclose this fact immediately to her husband so that the culprit is nabbed. She would not remain silent for days together, rather the conduct of the prosecutrix is surprising because when her husband reached home, instead of narrating the incident of rape to him, she allowed the accused to stay in her house for another two days who had allegedly done wrong activities with her again on the next day as well which conduct creates a serious doubt on her credibility.
Therefore, in view of the aforesaid facts and circumstances, the testimony of the prosecutrix cannot be said to be trustworthy, natural and confidence inspiring and, as such, the ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 17 same is not worthy of credence being of a doubtful nature.
20. Furthermore, the statement of the prosecutrix is .
not consistent right from the time of lodging of the F.I.R. as well as from the time when her statement was recorded under Section 164 Cr.P.C. till the time of her deposition before the trial Court. In her statement under Section 164 Cr.P.C. Ext.
PW-5/B, she deposed that accused had performed first Satsang in their house w.e.f. 27.07.2016, whereas, in her deposition recorded before the trial Court, she deposed that accused performed first Satsang in their house on 26.07.2016.
In the F.I.R. Ext.PW-14/A , the prosecutrix has not mentioned about the holding of second Satsang by the accused but in her statement under Section 164 Cr.P.C., the prosecutrix has stated that the accused had performed second Satsang in their house w.e.f. 07.05.2017, whereas, in her deposition before the trial Court, she has stated that the accused performed second Satsang in her house w.e.f. 30th April, 2017 till 2nd May, 2017.
In the F.I.R., the prosecutrix has stated that on 11.06.2018, the accused on his own came to their house at 9:30 a.m. and at that time her husband was in his shop whereas, in her statement under Section 164 Cr.P.C., as well as in her deposition before the court, the prosecutrix stated that her ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 18 husband went on 11.06.2018 to bring the accused and the accused had come to their house alongwith her husband and .
thereafter her husband had left for his shop. In her statement under Section 164, Cr.P.C. the prosecutrix stated that when her husband visited the house at 03:00 P.M., he got suspicious but he kept silent and started observing change in her for the entire month and also got her medically examined, whereas, this part of her statement does not find mention in her deposition. The prosecutrix has also deposed in her cross-
examination that the accused had done wrong activities with her on the next day as well, however, this part of her deposition also does not find mention in the F.I.R. Ext.PW-14/A or in her statement 164 Cr.P.C. Ext. PW-5/B. Further, in her statement under Section 164 Cr.P.C., the prosecutrix has stated that on 30.07.2018, her husband asked the accused on telephone about the incident, but this part of statement does not find mention in her deposition. Therefore, aforesaid statement of the prosecutrix shows that there are many discrepancies, contradictions and embellishments in the statement of the prosecutrix.
::: Downloaded on - 08/09/2022 20:09:31 :::CIS 1921. After going through the entire evidence of the prosecution, it is evident that the statement of the prosecutrix, .
at every stage, has been improved and changed. The prosecutrix has contradicted her earlier statement. Her deposition before the court suffers from material contradictions and inconsistencies. Therefore, as per settled law, conviction cannot be based on such testimony of the prosecutrix, which is not worthy of credence.
22. The prosecutrix also admitted that she had not sustained any injuries. PW-6, Medical Officer, has also deposed that there was no external injury visible over her breasts, face, neck, abdomen, thigh and perineal region. The incident took place on 11.06.2018, however, she was medically examined on 9.08.2018. Therefore, the examining doctor was unlikely to find any evidence which would either support or conflict with the version of the prosecutrix. As per FSL report Ext.PW-15/A, human semen was detected on the vaginal slides of the prosecutrix, however, since the prosecutrix is a married woman of 38 years of age staying with her husband, therefore, the presence of semen on her vaginal slides cannot be attributed to the accused alone. Hence, in view of such ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 20 facts, medical evidence loses its significance when the incident had taken place two months prior to the medical examination .
of the prosecutrix as such no benefit can be derived from the statement of the Medical Officer as well as the from the FSL report.
23. The learned Legal Aid Counsel for the accused next contended that there is a delay in lodging of the F.I.R., which is fatal to the case of the prosecution as the incident had occurred on 11.06.2018, but the F.I.R. was lodged on 09.08.2018 i.e after the delay of about two months. It is a settled law that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay.
Undoubtedly, the delay in lodging the F.I.R. does not make the prosecution case improbable when such delay is properly explained, but deliberate delay in lodging the F.I.R. is always fatal. In cases where there is delay in lodging the F.I.R., the court has to look for a plausible explanation for such delay.
The purpose of insisting upon prompt lodging of the F.I.R.
before the police with respect to the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed. Since the delay in lodging of ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 21 the F.I.R. quite often leads to the embellishment, which is a creature of an afterthought, therefore, it has to be satisfactorily .
explained by the prosecution.
24. In Sahebrao and another Vs. State of Maharashtra (2006) 9 SCC 794, Hon'ble Apex Court held that delay has the effect of putting the Court on guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. In cases where there is delay in lodging the F.I.R., the prosecution must give an explanation for the same. The relevant portion of the aforesaid judgment is reproduced as under:-
"6.The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.
7.At this juncture, we would like to quote the following passage from State of H.P. v. Gian Chand wherein this Court observed: (SCC p.79, para 12) "12."Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any plausible explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 22 embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the .
delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. "
25. In Ramdas and Others Vs. State of Maharashtra, (2007) 2 SCC 170, the Hon'ble Apex Court has held that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution, however, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. The relevant para of the judgment reads as under:-
"24.....It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently ex plained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay...
......In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 23 family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may .
choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case.....
......Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact..."
26. In the instant case, admittedly, the incident had occurred on 11.06.2018, but the prosecutrix disclosed the same to her husband on 29.07.2018 and thereafter F.I.R was lodged before the police on 09.08.2018 i.e after the delay of about two months. As per the statement of the prosecutrix, the matter could not be reported to the police earlier as the accused threatened to kill her in case of disclosure of the incident to any person and she was in a terrified state and when her husband made repeated inquiries, she revealed this fact to him on 29.07.2018. However, in view of the facts and circumstances of the case, it can not be said that the accused ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 24 was in a position to threaten the prosecutrix as she herself in her cross-examination deposed that she did not disclose the .
incident to her husband on 11.06.2018 as her husband would have killed the accused on disclosure of this fact. The case of the prosecution is also that after the incident, the prosecutrix reduced intake of her meals and she was taken to the doctor twice by her husband. However, the prosecution has failed to prosecutrix in r to examine any doctor who had allegedly examined the between 11.06.2018 to 29.07.2018. No material has been placed on record by the prosecution in order to prove that the prosecutrix reduced intake of her meals and her medical tests were conducted in between 11.06.2018 to 29.07.2018, rather in cross examination the prosecutrix deposed that she did not sustain any injury and was in her senses on 11.06.2018. The further case of the prosecution is that after 29.07.2018 the prosecutrix and her husband con-
sulted various people in the village like Ranjit and Laxmi etc, who are disciples of the accused and reported the matter to the police on 09.08.2018. However, no explanation has been put-forth as to what was the necessity of consulting various people in the village prior to the lodging of the F.I.R. Moreover, PW-8, Laxmi has not corroborated this part of the statement of ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 25 the prosecutrix. She never deposed before the Court that pros-
ecutrix and her husband had consulted her before lodging of .
the F.I.R. Therefore, in our opinion, the prosecution has failed to explain the delay in lodging of the F.I.R. by the prosecutrix which raises considerable doubt regarding the veracity of the testimony of the prosecutrix and renders it unsafe to base any conviction.
27. The accused has also examined six witnesses in his defence in order to prove that the character of the accused is very good and they have not heard any complaint against the accused rather the husband of the prosecutrix was demanding an amount of Rs.5.00 lakhs from him and when he expressed his inability to pay the aforesaid amount, then husband of the prosecutrix threatened the accused to falsely implicate him. However, this Court does not deem it necessary to find out the probability of truth contained in the statement of defence witnesses because as per our aforesaid discussion, reliance has not been placed upon the testimony of the prosecutrix as well as on other evidence. It is a settled law that in a case of rape, the onus is always upon the prosecution to establish each ingredient of the offence and it is not the duty of the defence to explain as to how and why the victim ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 26 has falsely implicated the accused in a rape case.
In Kishan Chand v. State of H.P. 2011(2) Him.L.R. 1053, this .
Court has held that in a case of rape, the onus is always upon the prosecutrix to prove affirmatively each ingredient of the evidence it seeks to establish and such onus never shifts and it is no part of the duty of the defence to explain as to how and why in a rape case the victim has falsely implicated the as under:
r to accused. The relevant portion of the aforesaid judgment reads "11. It is well settled that in a case of rape, the onus is always upon the prosecutrix to prove affirmatively each ingredient of the offence. It seeks to establish that such onus never shifts. Further, it is no part of the duty of the defence to explain as to how and why in a rape case the victim has falsely implicated the accused. The evidence of the prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him.
However, create the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. It is also equally settled that the statement of the prosecutrix has to be weighed and examined as that of an injured witness. If, it inspires confidence it has to be acted upon without any corroboration".
::: Downloaded on - 08/09/2022 20:09:31 :::CIS 2728. One of the cardinal principles of criminal jurisprudence is that the accused is presumed to be innocent .
until he is proved guilty by the prosecution. In the instant case, as observed earlier, a combined and harmonious reading of the deposition of the prosecutrix goes to show that she is not a trustworthy and reliable witness. Her testimony does not inspire confidence and the same cannot be relied upon in the light of the principles of law laid down by the Hon'ble Supreme Court. Therefore, as per settled law, conviction cannot be based on such testimony of the prosecutrix, which is not worthy of credence. To constitute an offence of rape with a woman, other than the wife of the accused, either the victim must be below 18 years of age or the sexual intercourse committed with her by the accused must be against her will or without her consent. However, as per our aforesaid discussion, none of these essential ingredients to constitute an offence of rape is proved. Therefore, the charge against the accused under Section 376 I.P.C. has not been proved by the prosecution beyond reasonable doubt. In view of the evidence led by the prosecution, the charge against the accused under Section 506 IPC has also not been proved ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 28 against the accused beyond reasonable doubt.
29. Hence, in view of our aforesaid discussion, .
prosecution has failed to prove its case against the accused beyond reasonable doubt. The testimony of prosecutrix is infirm, contradictory and doubtful, which does not inspire confidence. The trial Court has not taken note of the material contradictions and discrepancies in the testimony of the prosecutrix and, therefore, there has been a total wrong appreciation of evidence on record, which has resulted in miscarriage of justice.
30. Accordingly, the appeal is allowed and the judgment of conviction and order of sentence dated 20.05.2019, passed in Sessions Trial No.72 of 2018, by the Sessions Judge Hamirpur, H.P., are set aside. Appellant is acquitted of the charges framed against him under Sections 376 and 506 of Indian Penal Code and he be set at liberty forthwith, if not required in any other case.
31. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellant is directed to furnish a personal bond in the sum of Rs.50,000/- with one surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation ::: Downloaded on - 08/09/2022 20:09:31 :::CIS 29 that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellant aforesaid, on .
receipt of notice thereof, shall appear before the Supreme Court.
( Sabina )
Judge
8th September, 2022
r to ( Sushil Kukreja )
Judge
(ravinder)
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