Himachal Pradesh High Court
Bal Krishan vs State Of H.P on 7 December, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 149 of 2018 Reserved on: 15.11.2022 Decided on: 07.12.2022 ___________________________________________________________ Bal Krishan ....Appellant Versus State of H.P. ...Respondent _ Coram The Hon'ble Ms. Justice Sabina, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? Yes.
For the appellant : Mr. N.S. Chandel, Sr. Advocate with Mr. Vinod Kumar Gupta, Advocate.
For the respondent/State : Mr. Anil Jaswal, Additional Advocate General.
Sushil Kukreja, Judge The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, lays challenge to the judgment/order of conviction/sentence dated 18.04.2018, ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 2 passed by learned Additional Sessions Judge (I), Shimla, .
Camp at Rohru, H.P., in Sessions Trial No. 6R/7 of 2013, whereby the appellant/accused/convict, (hereinafter referred to as "the accused"), was convicted and sentenced to undergo rigorous imprisonment for three years under Section 66E of the Information and Technology Act (hereinafter referred to as "IT Act") and to pay a fine of Rs.1,00,000/ (rupees one lac) and in default of payment of fine to further undergo simple imprisonment for three months. The accused was further sentenced to undergo rigorous imprisonment for a period of two years under Section 67 of the IT Act and to pay a fine of Rs. 1,00,000/ (rupees one lac) and in default of payment of fine to further undergo simple imprisonment for two months. The accused was also sentenced to undergo rigorous imprisonment for a period of ten years under Section 376 of the Indian Penal Code (hereinafter referred to as "IPC") and to pay a fine of Rs. 50,000/ (rupees fifty thousand) and in default of payment of fine to further undergo simple imprisonment ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 3 for six months. All the sentences were ordered to run .
concurrently.
2. The case of the prosecution in brief is that on 28.03.2013, the prosecutrix presented an application to the Suprintendent of Police, C.I.D. Shimla, wherein it was alleged that in the year 200607, she was studying in Government Senior Secondary School, Sawra (Saraswati Nagar) and the accused used to run a shop in the name and style of 'Verma Trading Company' there. In the outer part of the shop, he used to sit himself, whereas, in the rear portion of the shop, his wife used to run a beauty parlour. As per the prosecutrix, firstly when she visited the beauty parlour of the wife of the accused for trimming her eyebrows, wife of the accused was present there. However, when second time she visited the beauty parlour, wife of the accused was not present there and taking advantage of her absence, the accused gave a toffee and chewinggum to her. After consuming the same, she felt intoxicated and the accused clicked her obscene photographs. The accused also told the prosecutrix to come to her shop at regular ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 4 intervals or else, he would upload her obscene .
photographs on Whatsapp and Facebook. Under the garb of obscene photographs, the accused had committed rape with the prosecutrix. In the month of April, 2012, the prosecutrix went to Baddi in connection with her job and in the month of November, 2012, she came to know that accused had forwarded her obscene photographs to taxi drivers of Sawra area. The prosecutrix also came to know that accused had also done similar type of act with another girl, who was the resident of Kuddu and had forwarded her obscene photographs also to taxi drivers. On the complaint of the prosecutrix, the police investigated the matter and on 29.03.2013, Inspector Kamal Chand, Investigating Officer, went to Verma Trading Company alongwith independent witnesses and prepared spot map. The office of the Verma Trading Company was searched and one ipod along with one memory card of 2 GB, containing obscene photographs were recovered. The recovered articles were put in a cloth parcel, sealed with seal impression 'A' at five places and taken into possession. On ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 5 the same day, Prem Lal, father of another girl presented .
three photographs of his daughter, six photographs of prosecutrix and one memory card of 2 GB, which were taken into possession. On 30.03.2013, Inspector Kamal Chand, went to Ghezta Studio at Sawra and recovered one hard disk from coaccused, Jishan Lal in presence of the Thereafter, the r accused to witnesses and the same was taken into possession.
persons were arrested and Investigating Officer also clicked photographs of accused Bal Krishan with his official camera for the purpose of comparison and sent the same to SFSL, Junga. The statements of the witnesses were recorded as per their versions. The Investigating Officer also got the medical examination of the prosecutrix conducted and obtained her birth certificate.
3. After completion of investigation, the accused Bal Krishan was chargesheeted for the commission of offence punishable under Section 376 of IPC and Sections 66E and 67 of Information and Technology Act, whereas, coaccused Jishan Lal was charge sheeted for the offence ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 6 punishable under Sections 66E and 67 of Information and .
4. Charge was framed by the learned trial Court against the accused persons, vide order dated 16.06.2015, wherein, the accused persons did not plead guilty of the charges framed against them and claimed to be tried.
5. In order to prove its case, the prosecution examined as many as 20 witnesses. Statements of accused persons were recorded under Section 313 Cr.P.C., wherein they denied the prosecution case. However, they did not lead any evidence in their defence.
6. On the basis of evidence led on record by the prosecution, the learned trial Court acquitted coaccused Jishan Lal for the offence alleged against him, whereas, held accused Bal Krishan guilty of his having committed offence punishable under Sections 66E and 67 of IT Act and Section 376 of IPC and sentenced him as per description given hereinabove.
7. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence, passed by ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 7 the learned trial Court, accused Bal Krishan approached .
this Court, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.
8. We have heard the learned Senior counsel appearing for the appellant, learned Additional Advocate the records carefully.
r to General for the respondentState and also gone through
9. Learned Senior counsel appearing on behalf of the appellant has contended that testimony of the prosecutrix does not inspire confidence, as the same is suffering from material contradictions. He has further contended that the prosecution has failed to prove the age of the prosecutrix as birth certificate and copy of parivar register are not admissible in evidence because the same are signed by the Secretary Gram Panchayat. He has further contended that there is delay in lodging the FIR, which has not been sufficiently explained. He has also submitted that prosecution has failed to prove on record ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 8 that obscene photographs were clicked and transmitted by .
the accused Bal Krishan.
10. On the other hand, learned Additional Advocate General has contended that it has been duly established on record that accused Bal Krishan had committed sexual intercourse with the prosecutrix without her consent by putting her in fear of reputation and had also clicked and transmitted the obscene photographs of the prosecutrix for the purpose of blackmailing her.
11. The crime of rape can be regarded as the highest torture Inflicted upon a woman. It causes not only physical torture to the body of the woman but adversely affects her mental, psychological and emotional sensitivity.
Therefore, rape is most hatred crime against the very basic human right and violative of the woman's most fundamental right, namely the right to life. It is less a sexual offence than an act of aggression aimed at degrading and humiliating women. Such cases are required to be handled by the courts with utmost sensitivity and high responsibility.
::: Downloaded on - 08/12/2022 20:32:34 :::CIS 912. The Rule of appreciation of evidence of .
prosecutrix in cases relating to rape has been considered in several cases by Hon'ble Supreme Court. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, Hon'ble Apex Court has held that rape or an attempt to rape is a crime not against an individual, but a crime which destroys the basic equilibrium of the social atmosphere. The relevant portion of the judgment reads as under: "49. .........Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. So, the courts should deal with such cases sternly and severely. No one has any right of encroachment. ............."
13. In Lillu @ Rajesh & Anr. Vs. State of Haryana, (2013) 14 SCC 643, the Hon'ble Apex Court has observed that rape is violative of victim's fundamental right under Article 21 of the Constitution, therefore, the courts should deal with such cases sternly and severely.
::: Downloaded on - 08/12/2022 20:32:34 :::CIS 10The relevant portion of the judgment is reproduced as .
under: "12. In State of Punjab v. Ramdev Singh: AIR 2004 SC 1290, this Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her selfesteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."
14. In State of U.P. Vs. Chhotey Lal, (2011) 2 SCC 550, the Hon'ble Supreme Courts has held that the courts must be sensitive and responsive to the plight of the female victim of sexual assault. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 11 alleging falsely about forcible sexual assault. The relevant .
portion of the judgment reads as under: "26. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of women's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge."
15. We may refer to a decision of the Apex Court in State of Andhra Pradesh vs. Gangula Satya Murthy, 1997(1) SCC 272, wherein it has been held that the Courts should examine the broader probabilities of a case ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 12 and not get swayed by minor contradictions or .
Insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. The relevant portion of the judgment reads as under: 27".....Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or Insignificant discrepancies In the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more Important because of late crime against women in general and rape in particular is on the Increase. It Is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation".
16. Keeping in mind these principles of appreciation of evidence of the victim of the rape case, let us examine version of the prosecutrix, who appeared in the witness box as PW1 and had categorically deposed that in the year 20062007 she was studying in 10+1 standard in ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 13 Government Senior Secondary School, at a place (name .
withheld) and at the same place, a beauty parlour was being run on the rear portion of the shop of accused Bal Krishan by his wife and on the front portion, watch shop was being run by the accused. She used to visit beauty parlour of the wife of accused Bal Krishan. She has further deposed that in the year, 2006, she visited the beauty parlor of accused Bal Krishan for trimming of her eyebrows and at that time, wife of accused Bal Krishan was there. However, next time when she visited the same beauty parlor, wife of the accused Bal Krishan was not there and he took the prosecutrix inside the beauty parlor.
She further deposed that accused Bal Krishan offered her toffee and chewinggum and after consuming the same, she lost her senses and accused had started kissing her.
After becoming normal, she went back to her house. The said incident was not disclosed by her to anyone due to fear. She further deposed that thereafter accused Bal Krishan kept on calling her at his shop by saying that if she did not visit his shop again and again, he would show ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 14 her objectionable photographs to others and in this .
manner, accused Bal Krishan tortured her upto the year, 2011. Accused Bal Krishan also visited her house and threatened her that he would tell the entire incident to her father. She further deposed that in the year, 2012, she went to Baddi to work in a company and accused Bal Krishan used to give threatening calls to her on her mobile phone. In the month of November, 2012, when she was at Shimla, her parents told her that the accused Bal Krishan had transmitted her obscene photographs to others through his mobile phone and as such the accused humiliated her in the public. She further deposed that accused Bal Krishan also did the same illegal acts with another girl. She has further deposed that accused Bal Krishan had committed sexual intercourse with her in the beauty parlour in question for 56 times w.e.f. 2006 to 2011 against her wishes. She made written complaint Ext. PW1/A to S.P., C.I.D., Shimla and thereafter she was got medically examined. The prosecutrix was cross examined at length by the learned defence counsel, ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 15 however, nothing favourable could be elicited from her .
lengthy crossexamination. She had successfully withstood the test of her crossexamination and there are no material discrepancies and contradictions in her statement, which go to the root of the case or which may affect the core of prosecution case in any manner or shake the veracity of the prosecution case. Even after being subjected to a lengthy crossexamination, the prosecutrix's statement made in the examinationinchief regarding sexual assault made by the accused remained totally unimpeached. She emphatically denied all the suggestions put forth by the defence counsel to probablise noncomplicity of the accused.
17. The statement of the prosecutrix is also supported by PW4, who had stated that accused Bal Krishan used to offer sweets, chocolates etc. to her and inside the beauty parlor used to commit obscene activities with her and at that time, she was studying in 11th Standard. She further deposed that after taking sweets, chocolate etc. she lost her consciousness and accused Bal ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 16 Krishan used to kiss and touch her entire body and .
thereafter he had shown her the obscene photographs and started blackmailing her and on the basis of those obscene photographs accused used to call her time and again by threatening her that her photographs would be made public and under his threat, she used to visit her shop.
She further deposed that in January, 2013, her father narrated the incident that accused Bal Krishan had made public, her as well as prosecutrix's photographs .
18. PW5, Dr. Nishi Sood, Assistant Professor (Gynecologist), Kamla Nehru Hospital, Shimla, H.P., has deposed that the prosecutrix was medically examined by Dr. Ambika Chauhan on 2nd April, 2013, and thereafter, she was referred to Medical Board for obtaining the opinion and as per opinion of the Medical Board, possibility of sexual intercourse could not be ruled out.
She further deposed that MLC, Ext. PW5/A, was issued by the Board.
19. PW9, Prem Lal, has deposed that in the year, 2012, his nephew handed over to him one memory card ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 17 and shown him photographs of her daughter. In the said .
photographs, her daughter as well as the prosecutrix were visible alongwith accused Bal Krishan. He further deposed that on his asking, his daughter disclosed that accused Bal Krishan gave them sweets (toffee). Thereafter, they became subconscious and accused Bal Krishan took obscene photographs and had also done unwarranted activities with them. He further deposed that thereafter accused Bal Krishan started blackmailing her daughter, who at that time, was minor.
20. PW10, Chander Lal, has deposed that Ajay Jamwal, who is a driver in Maxi Cab and also his friend, disclosed to him that there were photographs of her cousin sister, i.e. the prosecutrix and one another girl, in his mobile phone, which were obscene photographs and he had seen those photographs in the mobile of Ajay Jamwal. Thereafter, the aforesaid photographs were transmitted through bluetooth in his mobile. He further deposed that he handed over memory card of his mobile ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 18 phone, having such obscene photographs, to his uncle .
(Mama).
21. PW11, who is father of the prosecutrix, has deposed that in the month of November, 2012, PW9 Prem Lal, had shown to him the obscene photographs of her daughter and one another girl alongwith accused Bal Krishan in his mobile and thereafter he contacted his daughter, who disclosed that said obscene photographs were clicked by accused Bal Krishan, who used to blackmail her and had committed sexual intercourse with her w.e.f. 2006 to 2010.
22. PW12, Ajay Jamwal, has deposed that obscene photographs of the prosecutrix and another girl were given to him by Harish Chanjta through bluetooth in his mobile and he further transmitted the same through bluetooth in the mobile of one Chander Lal.
23. Thus, from the perusal of the statement of the prosecutrix, it has become clear that accused Bal Krishan used to blackmail her on the basis of obscene photographs by threatening her that he would disclose the ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 19 entire incident to her father and also that he would make .
her obscene photographs viral if she did not fulfill his unlawful demand of sexual favour and had committed sexual intercourse with her for 56 times from the period w.e.f. the year 2006 to 2011 against her wishes. From the perusal of the statements of PW3 Prem Singh, PW9 Ajay Jamwal, rit has to Prem Lal, PW10 Chander Lal, PW11 Sangat Ram, PW12 become clear that obscene photographs, Ext. PW4/A to Ext. PW4/C and Ext.
PW9/A1 to Ext. PW9/A6 were transmitted in the electronic form and accused Bal Krishan is appearing in the aforesaid photographs alongwith the prosecutrix and one another girl, i.e. PW4.
24. PW20, Dr. Jagjit Singh, Scientific Officer, SFSL, has stated that obscene photographs Ext. PW4/A to Ext. PW4/C, Ext. PW9/A1 to Ext. PW9/A6 were found in memory card Ext. P8, which was recovered from accused Bal Krishan and memory card Ext. P3, which was recovered from PW9, Prem Lal. He has also annexed CD/DVD with certificate under Section 65B of Indian ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 20 Evidence Act alongwith his report Ext. PW16/A. CD Ext.
.
PW20/F was prepared by him from memory card Ext.
P8, which was recovered from accused Bal Krishan. In this CD, obscene photographs were found along with other photographs. As observed earlier, accused Bal Krishan is appearing in the obscene photographs alongwith the prosecutrix photographs, (PW1) beauty r as well parlour as is PW4.
also
In
clearly
the said
visible.
Therefore, from the above discussion and from the statements of material witnesses, it has been duly proved on record that accused Bal Krishan had clicked the obscene photographs for the purpose of blackmailing the prosecutrix and had transmitted the same through the electronic mode, when prosecutrix as well as PW4 refused to fulfill his unlawful demand of sexual favour.
25. The basic question now is if the prosecutrix ever consented for sexual intercourse or the accused had committed sexual intercourse with her against her wishes by blackmailing her and by putting her in fear of hurting her reputation on the threat of transmitting her obscene ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 21 photographs. At this stage a reproduction of the definition .
of the offence of rape would be necessary and relevant.
26. Section 375 defines rape. It reads as:
" 375. Rape.A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions : First. Against her will Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. With or without her consent, when she is under sixteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.::: Downloaded on - 08/12/2022 20:32:34 :::CIS 22
Seventhly. When she is unable to communicate consent.
.
Exception 1. A medical procedure or intervention shall not constitute rape. Exception 2.Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
27. The concept of consent in the context of Section 375 IPC has come up for consideration before the Hon'ble Apex Court on many occasions. Before we refer to some of the decisions, reference to Section 90 IPC will be relevant.
Section 90 of the IPC defines consent. It reads as under: "90. Consent known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception....."
28. The Hon'ble Supreme Court in a long line of cases has given wider meaning to the word consent in the context of sexual offences as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law (2nd Edn.), Vol.1 (1977) at p. 422 the word consent has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 23 or evil on either side. It is further stated that consent .
supposes three thingsa physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.
29.
r to The Hon'ble Supreme Court in Deelip Singh alias Dalip Kumar Vs. State of Bihar, (2005) 1 SCC 88, has held that submission of the body under the fear or terror cannot be construed as a consented sexual act.
Para25 of the judgment reads as under: "25. ........The enunciation of law on the meaning and content of the expression 'consent' in the context of penal law as elucidated by Tekchand, J. in Harnarain's case (which in turn was based on the above extracts from law Dictionaries) has found its echo in the three Judge Bench decision of this Court in State of H.P. Vs. Mango Ram. K.G. Balakrishnan, J. speaking for the Court stated thus: (SCC pp. 23031, para 13).
"Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 24 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 relevant circumstances."
30. Similarly, the Hon'ble Supreme Court in Satpal Singh Vs. State of Haryana, (2010) 8 Supreme Court Cases 714, has held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Para30 of the judgment is reproduced as under: "30. It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies of her exercise of a free and untrammelled right to forbid or withhold what is being consented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. An act of helplessness in the face of inevitable compulsions is not consent in law. More so, it is not necessary that there should be actual use of force. A threat of use of force is sufficient.
::: Downloaded on - 08/12/2022 20:32:34 :::CIS 2531. The Hon'ble Supreme Court in Kaini Rajan Vs. .
State of Kerala, (2013) 9 Supreme Court Cases 113, has held that consent for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of significance and moral quality of the act, but after having fully exercised the choice between resistance and assent. Para12 of the judgment reads as under: "12. .........The expression "against her will"
means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of significance and moral quality of the act but after having fully exercised the choice between resistance and assent..........."
32. In the instant case, if evidence of prosecutrix is considered, then it can not be said to be a case of consent free from fear. From the statements of the ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 26 prosecutrix i.e. PW1, PW4 father of the prosecutrix, .
PW9 Prem Lal and PW11 Sangat Ram, it has become clear that the accused Bal Krishan blackmailed the prosecutrix and even he had visited the house of the prosecutrix 34 times and threatened her that he would disclose the entire incident to her father and also make her obscene photographs public if she did not fulfill his unlawful demand of sexual favour. The accused by way of deceitful means clicked photographs of the prosecutrix and thus, the intention of the accused right from the beginning was to exploit the prosecutrix and she was entrapped by the accused and was subjected to rape w.e.f. the year 2006 to 2011. The evidence on record clearly suggests that the consent of the prosecutrix to maintain physical relations with her was obtained by the accused by blackmailing her and by putting her in fear of hurting her reputation on the basis of transmitting obscene photographs, as such, her consent was not free from fear of hurting her reputation. We have also examined the evidence of prosecutrix and other ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 27 prosecution witnesses to satisfy ourselves whether there .
was likelihood of false implication or motive for false accusation. However, except for the bald statement of accused under Section 313, Cr.P.C. that he has been falsely implicated as the prosecutrix had conspired with her relative to extract money from the accused , nothing has been brought on record that may probabilise that the prosecutrix had motive to falsely implicate the accused by extracting money from the accused. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at stake by falsely implicating the accused.
33. So far as the age of the prosecutrix is concerned, her birth certificate has been placed on record as PW8/B and as per the same, date of birth of the prosecutrix is mentioned as 05.03.1990. In parivar register Ext. PW8/C also,the date of birth of the prosecutrix is mentioned as 05.03.1990. Similarly, date of birth of PW4 is mentioned as 18.05.1993 in birth certificate Ext. PW7/B. The evidence on record suggests ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 28 that their photographs were clicked in the year, 2006. The .
prosecutrix as well as PW4 have categorically deposed that their obscene photographs were clicked when they were studying in Government Senior Secondary School.
Thus, it has become clear that at the time of clicking of the aforesaid photographs the prosecutrix as well as PW4 were below 18 years of age and were minor school going girls. Learned Senior Counsel for the appellant has contended that the prosecution has failed to prove the age of the prosecutrix and PW4 as birth certificate PW8/B and parivar register Ext. PW8/C and birth certificate of PW4 i.e. Ext. PW7/B are not admissible in evidence, as the same are signed by the Secretary Gram Panchayat.
However, this submission of learned Senior Counsel for the appellant is devoid of any force. Since as per our aforesaid discussion, the consent of the prosecutrix to maintain physical relations with her was obtained by the accused by blackmailing her and by putting her in fear of hurting her reputation on the basis of transmitting obscene photographs and he had committed sexual ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 29 intercourse with her in the beauty parlour in question .
against her wishes. therefore, it is not material as to weather the prosecutrix was above or below the age of 18 years at the time of incident.
34. So far as the delay in lodging the FIR is concerned, it is settled law that delay in lodging the FIR may not by itself be fatal to the case of the prosecution.
There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful. The Hon'ble Supreme Court in Tulshidas Kanolkar Vs. State of Goa, (2003) 8 Supreme Court Cases 590, has held that the delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider, if any explanation has been offered for the delay. Relevant portion of the judgment reads as under: "5. We shall first deal with the question of delay. The unusual circumstances satisfactorily ex plained the delay in lodging of the first informa tion report. In any event, delay per se is not a mitigating circumstance for the accused when ac ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 30 cusations of rape are involved. Delay in lodging first information report cannot be used as a ritu .
alistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfac tory explanation of the delay is weighty enough to reject the plea of false implication or vulnerabil ity of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle."
35. Similarly, in Dildar Singh Vs. State of Punjab, (2006) 10 Supreme Court Cases 531, the Hon'ble Supreme Court has held that in normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 31 talking to anyone, lest the family name and honour is .
brought into controversy. Relevant portion of the judgment reads as under: "6........ This Court has observed in several deci sions that the Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. A girl in a tradition bound nonpermissive society would be extremely reluctant even to admit that any in cident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing any one about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embar rassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feel ing of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information re port. Delay has the effect of putting the Court on guard to search if any explanation has been of ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 32 fered for the delay and, if offered, whether it is satisfactory."
.
36. In the instant case, after carefully going through the evidence of the prosecution, it has become clear that the delay in lodging the FIR has been satisfactorily explained by the prosecutrix, as accused Bal Krishan had clicked obscene photographs of the prosecutrix in the year, 2006 and thereafter he started blackmailing the prosecutrix on the pretext that if she did not adhere to his unlawful demand of the sexual favour, he would transmit her obscene photographs and make the same public. It has also come in evidence that the accused Bal Krishan had also visited the house of the father of the prosecutrix 3 to 4 times by threatening the prosecutrix that he would disclose the entire incident to her father and in April 2012, when the prosecutrix went to Baddi to work in the company, thereafter also the accused had been threatening her continuously on her mobile phone and in the month of November, 2012, accused had transmitted the obscene photographs of the prosecutrix and had made ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 33 the same public. Thus, it is clear that the prosecutrix .
being unmarried girl had first decided to maintain silence when accused Bal Krishan had clicked her obscene photographs and committed sexual intercourse with her being conscious of danger of her reputation and chastity being put at stake. However, when the accused had started blackmailing and sexually exploiting her time and again for more than five years and finally when in the month of November 2012, she came to know that he made her obscene photographs public, she immediately filed the complaint before the police. Thus, delay in lodging the FIR has satisfactorily been explained by the prosecutrix.
37. No other point was urged before us.
38. Thus in the given facts and circumstances, in our view, the evidence of the prosecution is reliable and has rightly been acted upon by the Ld. trial Court. The accused Bal Krishan entrapped the prosecutrix by deceitful means by clicking her obscene photographs as well as of PW4 with a view to blackmail them and ::: Downloaded on - 08/12/2022 20:32:34 :::CIS 34 transmitted the same through the electronic means and .
later continued to satisfy his lust and committed sexual intercourse with the prosecutrix by obtaining her consent under the fear of hurting her reputation. Therefore, the conviction and sentence awarded by the learned trial Court upon the accused Bal Krishan is based upon proper appreciation of evidence and law and the same do not warrant any interference and are liable to be upheld.
39. Ordered accordingly.
40. For the reasons recorded hereinabove, the appeal is dismissed.
( Sabina )
Judge
( Sushil Kukreja )
7
th
December, 2022 Judge
(raman)
::: Downloaded on - 08/12/2022 20:32:34 :::CIS