Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 16 September, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 280 of 2009.
Reserved on: 04.09.2015.
.
Date of Decision: 16th September, 2015.
State of Himachal Pradesh .....Appellant.
Versus
of
Kamal Swarup ..Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Ramesh Thakur, Assistant Advocate General.
For the Respondent: Mr. Ajay Kumar, Senior Advocate with Mr. Dheeraj K. Vashisht, Advocate.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State of H.P. against the judgment of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P. rendered in Sessions Trial No. 9 of 2001, whereby, the learned trial Court acquitted the accused/respondent of the charge of his having allegedly committed an offence punishable under Section 376 of the IPC.
::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 22. Briefly stated the facts of the prosecution case are that on 27.7.1999, the prosecutrix accompanied by her borther-in-law Bhagat Singh lodged FIR, Ex.PW3/A at Police .
Station, Rampur that she was youngest of her parents amongst two brothers and three sisters and was resident of Deothi. The prosecutrix could not clear her compartment in matriculation examination held in the of year 1996 and left the school. On 18.6.1998 in the morning, the prosecutrix went to the fields to bring grass.
rt While she was cutting grass, the accused came to the field and caught hold of the prosecutrix and fell her on the ground. The accused broke the string of her salwar and committed rape on the person of the prosecutrix. The prosecutrix attempted to cry and the accused gagged her mouth. The accused threatened to do away with the life of the prosecutrix, if she disclosed the incident. The accused stated to her not to disclose the incident and assured to marry her. The prosecutrix told the accused that she was pregnant from his loins on which the accused told her to continue with the pregnancy. On 12.7.1999, when the prosecutrix accompanied by her mother and brother Sohan Lal went to the house of the accused, his parents and sister Kiran abused them and they returned to ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 3 the house. The accused has committed forcible sexual intercourse with the prosecutrix on the pretext of performing marriage with her and the accused has refused .
to marry her. The prosecutrix was got medically examined from doctor Rajender Bisht. As per the opinion of the doctor the prosecutrix had 34 to 36 weeks of pregnancy (height of uterus) foetal part palpable. Foetal heart sound of present. Labia and nigra present. The prosecutrix produced salwar which she was wearing on the date of rt incident and broken string of salwar on which knot was tied to join the two eds to the police and the police sealed the Salwar and string in two parcels and took the same in possession per memo Ex.PW1/A signed by the prosecutrix, Bhagat Singh and Daulat Ram. The salwar was sent to FSL and the Assistant Director, FSL per report Ex.PW14/A found that there was blood on the salwar and there was no semen. The birth certificate of the prosecutrix Ex.PW7/A wherein the date of birth of the prosecutrix is recorded to be 1.6.1979 was also taken into possession from the Registrar, Births and Death, Gram Panchayat, Deothi per memo Ex.PW7/B signed by Sh. Krishan Lal HHC and the Registrar. The school certificate comprised in Ex.PW12/E of middle examination of the prosecutrix recording her ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 4 date of birth to be 3.12.1978 was also taken into possession. The date of birth of the prosecutrix as per the father of the prosecutrix was 9.11.1982 and the .
prosecutrix was aged 16 ½ years at the time of the alleged occurrence. The Dental Surgeon after dental examination of the prosecutrix opined the age of the prosecutrix to be between 16-17 years. The prosecutrix was also examined of by the Radiologist for determination of age. The Radiologist after radiological examination opined that the rt age of the prosecutrix was between 17 to 20 years. The prosecutrix gave birth to a male child on 11.8.1999. The blood sample of the accused, the prosecutrix and newly born baby was taken and the blood group of the accused, prosecutrix and newly born baby was found B+ and the doctor opined that Kamal Swarup may be possible father of baby of Roshani Devi. The police took up the case for DNA examination with CFSL, Kolkata on direction of the Hon'ble High Court of Himachal Pradesh in September, 2000. The prosecutrix consented to provide her blood sample and that of the child for DNA examination to the police per memo Ex.PW13/A, however, the accused refused to provide his blood sample per memo Ex.PW8/A. The prosecutrix also gave her consent for taking of blood ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 5 before the Executive Magistrate and the accused made a statement refusing to provide blood sample before the Executive Magistrate per consent memo Ex.PW6/A. Site .
plan was prepared. The accused had committed sexual intercourse with the prosecutrix under the promise to marry her and after the pregnancy of the prosecutrix assured to marry her and continued committing sexual of intercourse with her. The parents and brother of the accused accompanied by the prosecutrix went to the rt house of the accused to leave the prosecutrix at his house on which the family members of the accused abused her as the prosecutrix belong to scheduled caste and the accused was Brahmin and for this reason the accused did not want to marry her.
3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court.
4. The accused was charged by the learned trial Court for his having committed an offence punishable under Section 376 of the IPC . In proof of the prosecution case, the prosecution examined 18 witnesses. On conclusion of recording of the prosecution evidence, the ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 6 statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed false implication. In .
defence, he examined one witness.
5. The learned trial Court on an appreciation of the evidence on record, returned findings of acquittal in favour of the accused.
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6. The State of H.P. is aggrieved by the findings of acquittal recorded by the learned trial Court. The learned Assistant rt Advocate General appearing for the appellant/State has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-
appreciation of material on record. Hence, he contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction.
7. On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the learned Court below are based on a mature and balanced appreciation of ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 7 evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the .
learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
9. The alleged occurrence which took place on 18.06.1998 was reported to the police on 27.07.1999. The of FIR is constituted in EX.PW3/A. In Ex.PW3/A, the prosecutrix has recorded therein that the pretext of or rt allurement of marriage proffered to her by the accused induced her to succumb to his sexually accessing her. The learned trial Court though had recorded the statements of the father, mother, brother and brother-in-law of the prosecutrix to whom the prosecutrix had unraveled the occurrence in the month of July, 1999. However, the statement of the prosecutrix which was to be recorded on 6.01.2003 could not then be recorded by the learned trial Court on account of the prosecutrix having gone missing.
The belated lodging of the FIR qua the incident assumes significance, also the factum of the prosecutrix having succumbed to the sexual overtures of the accused under an allurement of or pretext of marriage proffered by him to her, whereas, she having carried a child in her womb ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 8 purportedly fathered by the accused since November, 1998 which was delivered by her on 11.08.1999 assumes immense significance, in concluding whether the .
attribution of an inculpatory role by the prosecutrix in EX.PW3/A, besides in Ex.PW16/A is or is not ingrained with truth, especially when for the reasons which would be meted by this Court hereinafter, she at the stage of contemporaneous to the ill-fated occurrence had acquired the capacity to accord consent to sexual rt intercourse/intercourses, if any, perpetrated upon her by the accused. The statement of the prosecutrix could not be recorded on 6.1.2003 before the learned trial Court as she had gone missing since 29.12.2002 qua which fact of hers having gone missing, a report came to be lodged with the police station concerned. The dead body of the prosecutrix was recovered in a field on 18.01.2003 and it was subjected to postmortem examination by Dr. Piyush Kapila. A photo copy of the postmortem report prepared by Dr. Piyush Kapila after his having subjected the dead body of the deceased to postmortem examination stands exhibited as Ex.PW18/A. Consequently, in the face of the demise of the prosecutrix, the learned trial Court was not seized of the best evidence comprised in the deposition of ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 9 the prosecutrix. Obviously, for non recording of the deposition of the prosecutrix, no conclusion can hence be formed on the strength of Ex.PW3/A lodged by her qua the .
incident at police station Rampur whether it constitutes a trustworthy, credible and an inspiring version qua the incident. Also, the oral depositions of the father, mother, brother and brother-in-law of the prosecutrix who had of come to be apprised by the prosecutrix in July, 1999 qua the factum of the accused having induced her on the rt pretext of marriage to succumb to his sexual overtures and of hers carrying in her womb a child purportedly begotten from his loins which she ultimately delivered on 11.08.1999, cannot carry probative tenacity or probative vigour at par with the deposition of the prosecutrix, who however has remained unexamined on account of hers not surviving at the time when her deposition was to be recorded by the learned trial Court. However, even though the deposition of the prosecutrix could not be recorded before the learned trial Court, nonetheless, the prosecutrix during the pendency of a petition laid by her before the Sub Divisional Judicial Magistrate, Rampur claiming therein maintenance against the accused herein, had recorded before the aforesaid her statement on oath ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 10 comprised in Ex.PW16/A. Ex.PW16/A is a certified copy of the statement made by the prosecutrix before the learned Sub Divisional Judicial Magistrate, Rampur in a petition .
preferred by her before him claiming maintenance against the accused. PW16, who recorded the statement of the prosecutrix comprised in Ex.PW16/A has proved that the exhibit aforesaid constitutes the statement of the of prosecutrix recorded under his dictation by his Reader in maintenance petition No.83-4 of 2001 on 14.12.2001.
rt Consequently, even in the face of the prosecutrix having not deposed before the learned trial Court for lending corroboration to the version qua the ill-fated incident spelt out by her in FIR Ex.PW3/A, the certified copy of her statement comprised in Ex.PW16/A is both, relevant and admissible for gauging therefrom whether the imputations of culpability reared therein by the prosecutrix against the accused arising from an incident which occurred on 18.06.1998 are founded upon truth or are on account of delay vitiated with the vice of concoctions and in aftermath whether the ensuing inference of consent of the prosecutrix to the accused sexually accessing her, is emanating therefrom. In the face of Ex.PW7/A, the certificate taken into possession by the Investigating ::: Downloaded on - 15/04/2017 18:57:16 :::HCHP 11 Officer from the Registrar, Births and Deaths, Gram Panchayat, Deothi, disclosing therein her date of birth to be 01.06.1979 rendered her at the stage .
contemporaneous to the ill fated incident, to while hers having acquired majority capacitated to mete out consent to the accused to his sexually accessing her. Amplifying vigour to the inference aforesaid of the prosecutrix at the of apposite stage having arrived at the age of consent for hers being construable to be clothed with competence to rt accord consent to the accused to his sexually accessing her, is lent by the factum of the father of the prosecutrix in his cross-examination having admitted that he had got the prosecutrix admitted in school. In sequel, with the father of the prosecutrix having admitted the fact of his having got the prosecutrix admitted in school constitutes the entry qua her date of birth recorded as 3.12.1978 in Middle Standard Examination Certificate, comprised in Ex.PW12/E to be not bereft of truth, besides also renders the testimony of DW1, who has proven the factum of the entry qua the date of birth of the prosecutrix existing at serial No.2357 in the school records of Government Primary School, Deothi wherein the date of birth of the prosecutrix stands recorded as 3.12.1978 to be also ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 12 acquiring veracity. Even though some difference exists qua the date of birth of the prosecutrix recorded in Ex.PW12/E and Ex.PW7/A yet when the difference therein .
in the recording of the date of birth of the prosecutrix is minimal, besides when the entries qua the date of birth of the prosecutrix both in Ex. PW12/E and in Ex.PW7/A manifests the imminent fact of the prosecutrix on the ill-
of fated day having acquired majority, besides capacitated to mete out consent to the accused for his sexually accessing her, rt renders benumbed the oral deposition of the prosecution witnesses comprised in the testimonies of PW-
1, PW-2 and PW-3, unfolding the factum of the prosecutrix at the time of occurrence being of an age lesser than the one portrayed in Ex.PW12/E and Ex.PW7/A.
9. Apart therefrom, the testimony of the prosecutrix comprised in Ex.PW16/A, on its threadbare analysis would unearth whether the purported succumbing of the prosecutrix to the sexual overtures of the accused under his meting out to her a purported pretext of or allurement of marriage mobilizes or garners any veracity or whether she having for the reasons aforesaid acquired majority at the apposite stage had meted consent to the accused to his sexually accessing her, on 18.06.1998. With ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 13 the prosecutrix having purportedly succumbed to the sexual overtures of the accused under pretext of marriage proffered to her by the accused, she, as apparent from an .
incisive scrutiny of the testimonies of PW-1 Daulat Ram, Smt. Dassi Devi, her parents, besides a threadbare analysis of the testimonies of PW Bhagat Ram, her brother-in-law and of Sohan Lal, her brother, conceived in of the month of November, 1998. Accuracy to the testimonies of the aforesaid prosecution witnesses qua the rt factum of the prosecutrix having conceived in the month of November, 1998 is lent by the factum of the prosecutrix 9 months thereafter on 11.08.1999 having delivered a child. Besides, when she in her examination-in-chief comprised in Ex.PW16/A had admitted the factum of hers having conceived in the month of November, 1998 gives firmness to the inference aforesaid of hers having conceived in the month of November, 1998.
10. Now viewed in the context of the family of the prosecutrix having acquired knowledge qua the factum of the prosecutrix having conceived in the month of November, 1998 and theirs having omitted to promptly lodge a report qua the occurrence with the police station concerned does give ground to a firm and formidable ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 14 inference that with the prosecutrix having arrived at the age of consent had meted consent to the accused to sexually access her, besides the effect of imprompt .
lodging of the FIR qua the alleged occurrence renders it to be acquiring the taint of afterthought as well as of falsehood. Even though the prosecutrix in Ex.PW3/A has narrated therein that the initial sexual encounter of of 18.6.1998 which occurred inter se her and the accused was under a pretext of marriage proffered to her by the rt accused. Nonetheless, when in her statement constituted in her examination-in-chief comprised in Ex.PW16/A, she has disclosed therein that even thereafter she had repeated sexual intercourses with the accused while her consent to the accused sexually accessing her, having been induced by an allurement of marriage proffered to her by the accused or her consent to the sexual overtures of the accused emanating from pretext of marriage proferred to her by the accused, yet, even when the initial sexual encounter inter se the accused and the prosecutrix which occurred in the month of June, 1998, did not sequel hers conceiving within a month thereafter, hence the sexual encounters inter se her and the accused subsequent thereto are to be concluded to have sequeled ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 15 hers conceiving in November, 1998. In aftermath, with the accused having not stood to his purported commitment to the prosecutrix of his marrying her, on .
score whereof he induced her to permit him to sexually access her in the month of June, 1998, the relenting by the prosecutrix to his subsequently sexually accessing her and such sexual accesses being under the purported of pretext of marriage cannot find countenance with this Court, especially when with the accused having not stood rt by his commitment nor adhered to his promise to marry her on which allurement he coaxed the prosecutrix to succumb to his initial sexual overture, the prosecutrix thereafter too having succumbed to his sexual overtures, cannot render her subsequent succumbings to the sexual overtures of the accused to be under the pretext of or allurement of marriage proffered to her by the accused.
The effect of pretext of marriage or allurement of marriage whereunder she initially succumbed to the sexual overtures of the accused stood ground till the initial sexual encounter. However, when the promise of marriage or pretext of marriage whereunder she initially succumbed to the sexual overtures of the accused did not come to be adhered to by the accused, hers thereafter succumbing to ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 16 the sexual overtures of the accused cannot be construed to be under any impression of allurement of or pretext of marriage proffered by the accused to her. In other words, .
the effect of allurement of or pretext of marriage proffered by the accused to the prosecutrix remained awakened or alive only till the initial sexual encounter inter se the prosecutrix and the accused, obviously, the subsequent of relenting by the prosecutrix to the sexual overtures of the accused cannot be construed to be under any impression rt of allurements of or pretexts of marriage proffered by the accused to the prosecutrix rather in the accused sexually accessing the prosecutrix subsequent to the initial sexual encounter inter se them, is to be concluded to be bereft of any impression of allurement of marriage purportedly proffered by the accused to the prosecutrix, besides an inference which is garnerable is that in the accused sexually accessing the prosecutrix subsequent to the initial sexual encounter inter se them was without any tinge, trace or element of pretextuality or of allurement of marriage, more so when the effect thereof given her repeated sexual indulgences with the accused stood subsided as well as waned. Contrarily, this Court is constrained to conclude with invincibility that the relenting ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 17 by the prosecutrix to the sexual overtures of the accused subsequent to the initial sexual encounter inter se her and the accused were wholly consensual bereft of any .
impression of pretext or of allurement of marriage purportedly proffered by the accused to her, whereunder she purportedly succumbed to the accused sexually accessing her.
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11. With a conclusion having been drawn by this Court that the story propounded by the prosecutrix in her relevant rt and admissible statement comprised in Ex.PW16/A qua hers having succumbed to the sexual overtures of the accused under pretext of marriage is bereft of credibility, the impact and effect of the deposition of the prosecutrix comprised in Ex.PW16/A wherein she has disclosed that the protuberance of her stomach was noticeable in the 5th month since November, 1998, as such, while reckoning from the month of November, 1998, whe she had conceived a child in her womb, a period of five months thereafter, when a bulge/protuberance in her stomach was immediately noticeable on the growth of the fetus in her womb, inasmuch as in the month of March, 1999, yet when at that stage too she remained reticent qua the accused having under pretext of or of allurement ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 18 of marriage sexually accessed her and his having fathered the child carried by her in her womb, is that it with aplomb fosters an apt conclusion that the sexual encounters inter .
se the prosecutrix and the accused were neither forcible nor under the pretext of or of allurement of marriage rather were wholly consensual. The disclosure qua the incident by the prosecutrix to her family members was of made on 10.07.1999 whereas the bulge in her stomach personifactory of the fact of hers carrying a pregnancy was rt even noticeable in the month of March, 1999, at which earlier stage, the prosecutrix neither named the accused to be the person who had sexually accessed her nor urged her parents to urge the family members of the accused to apprise them of the factum that she was carrying in her womb a child reared by the accused hence they accept her as the wife of the accused, rather belatedly on 10.07.1999, the prosecutrix as well as her family members took to approach the family members of the accused for apprising them qua the fact that the fetus carried by the prosecutrix in her womb was nurtured or reared from the loins of the accused and that the latter marry her. The family members of the accused, as deposed by PW-1, PW-
2 and PW-3, abused and hurled invectives at them when ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 19 the latter apprised them about the prosecutrix carrying in her womb a fetus nurtured from the loins of the accused.
The evidence of the parents of the family members of the .
prosecutrix, who deposed as PW-1, PW-2 and PW-3 qua the family members of the accused having, when apprised by the aforesaid of the fact of the prosecutrix carrying in her womb a foetus fathered by the accused, hurled invectives of at them, is of no avail to the prosecution to contend that the sexual encounters inter se the prosecutrix and the accused rt which purportedly sequeled the prosecutrix carrying in her womb a child purportedly fathered by the accused were anvilled upon a pretext of or of allurement of marriage, proffered by the accused to her when otherwise the reasons which have been assigned hereinabove given the repeated indulgence by the prosecutrix in sexual intercourses with the accused, the espousal by her of the entire sequence of sexual intercourses to which she was subjected to, by the accused commencing from the initial to the last being spurred by pretext of or of allurement of marriage proffered to her by the accused, suffers effacement.
12. The nuance or the underlying current of the aforesaid discussion is that the purported penal mis-
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 20demeanor attributed to the accused by the prosecutrix which occurred in the month of June, 1998 which mis-
demeanors were successively repeated thereafter having .
remained not reported by the prosecutrix or her family members to the police station concerned either in November, 1998 when she conceived a child in her womb nor in the month of March, 1999 when there was a of noticeable protuberance in her stomach conveying the growth of a fetus in her womb, rather when the rt incident/incidents came to be reported only after the family members of the accused repulsed the offer of the parents of the prosecutrix to accept her as the wife of the accused or as their daughter-in-law, begets an inference that the attribution of penal mis-demeanors to the accused by the prosecutrix in Ex.PW3/A, besides in Ex.PW16/A is spurred by afterthought, hence acquiring the vice of concoction and invention rendering the versions in both to be untrustworthy and unreliable for concluding thereupon the guilt of the accused.
13. The accused had refused to give his blood for DNA test for facilitating formation of an opinion by the FSL concerned qua the paternity of the child delivered by the prosecutrix on 11.08.1999. Even for the accused having ::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 21 not given his blood for carrying out an apposite DNA test for determination of the paternity of the child delivered by the prosecutrix on 11.08.1999 and purportedly fathered by .
him may give leverage to an inference that he did father the child carried in the womb of the prosecutrix, nonetheless, even when the aforesaid inference for the reasons aforesaid may be formable against the accused, of yet the forming of the conclusion aforesaid would not to the considered mind of this Court constitute evidence that rt the sexual intercourses, if any, which occurred inter se the accused and the prosecutrix were forcible or under the pretext of or of allurement of marriage proffered by the accused to her rather the portrayal by the aforesaid discussion bed-rocked on a whole some appraisal of the apposite evidence comprised in the deposition of the prosecutrix in Ex.PW16/A, is given the factum of the prosecutrix having arrived at the age of consent she permitted the accused to sexually access her without any duress or compulsion having been exercised upon her by the accused nor also without any trace, element or tinge of allurement or of pretext of marriage having been proffered to her by the accused.
::: Downloaded on - 15/04/2017 18:57:17 :::HCHP 2214. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a .
wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on of record, rather it has aptly appreciated the material available on record.
15. rt In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgment is affirmed and maintained. Record of the learned trial Court be sent back forthwith.
(Rajiv Sharma)
Judge
(Sureshwar Thakur)
16 th
September, 2015 Judge.
(jai)
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