Devinder Kumar vs State Of Himachal Pradesh

Sushil Kukreja, J

The instant appeal has been preferred by the appellant/accused/convict (hereinafter referred to as the accused) under Section 374 (2) of the Code of Criminal Procedure (Cr.PC) against the judgment of conviction and order of sentence dated 30.06.2023, passed by learned Sessions Judge, Mandi, District Mandi, H.P., in Sessions Trial No.28/2022/2012, whereby he was convicted under Sections 366 and 376 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/-and in case of default of payment of fine, to undergo rigorous imprisonment for 10 months for commission of the offence punishable under Section 366 of IPC and for commission of the offence punishable under Section 376 of IPC, he was sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.25,000/- and in case of default of payment of fine, to undergo rigorous imprisonment for one year.

Briefly stated the facts of the case, giving rise to the instant appeal as per the prosecution story, are that the prosecutrix (name withheld) was was well acquainted with the accused and he had promised to marry her. On 10.03.2012, at about 10:00 pm, the accused made a telepathic call to her and informed that he was waiting for her on the road. He told her to leave the home and accompany him as he wanted to marry her. Thereafter, he took her to Kyoli nullah in a Nano car, which was being driven by one Pendru, who was told by the accused to pick them up in the morning and in the morning, said Pendru came and dropped them at Bhulah, from where, the accused took her to the house of his relatives at Shankar Dehra. Thereafter, he took her to his home on 12.03.2012, where she came to know that the accused was already, having two children and then she asked him to drop her at her home, however, he told her that he would get her married to his younger brother. The accused committed rape upon her w.e.f. 10.03.2012 to 12.03.2012 on the pretext of marriage. Thereafter, the prosecutrix any how reached her home on 13.03.2012 and narrated the entire incident to her parents and then on 19.03.2012, she alongwith her parents and relatives went to the police and lodged FIR against the accused. During the course of investigation, police prepared the site plan of the place from where, the prosecutrix was taken. Police took into possession the mobile phone as well as SIM card of the prosecutrix. The police got conducted the medical examination of the prosecutrix and the doctor did not find any marks of injury on her body. The accused was also medically examined by the police. The police also recorded the statements of the witnesses and had taken into possession certain documents.

On the completion of the investigation and receipt of the SFSL report, the charge-sheet was prepared and presented before the trial Court.

The learned trial Court, vide order dated 30.08.2013, framed charges against the accused under Sections 366 & 376 of IPC, to which, he did not plead guilty and claimed trial.

In order to prove its case, the prosecution examined as many as 18 witnesses and thereafter statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied all set of incriminating evidence led by the prosecution against him, besides pleaded to be innocent and being falsely implicated. However, the accused did not examine any witness in his defence.

On the basis of evidence led on record by the prosecution, the learned trial Court convicted the accused, vide the impugned judgment and sentenced him as per the description given hereinabove.

Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the appellant/accused approached this Court by way of the instant appeal, praying therein for his acquittal, after setting aside the aforesaid judgment of conviction and order of sentence.

Learned counsel for the appellant contended that the trial Court has failed to appreciate the law as well as the facts and its findings are based upon surmises and conjectures. He further contended that the impugned judgment is liable to be quashed and set aside on the sole ground that there was an inordinate and unexplained delay in reporting the matter to the police and lodging the FIR. He also contended that the prosecutrix accompanied and stayed with the respondent at her own at different places, therefore, the question of taking her from the lawful guardianship does not arise. He further contended that no injuries were found on the body of the prosecutrix at the time of her medical examination and it was a case of consensual relationship between the accused and the prosecutrix. Hence, he submitted that the impugned judgment of conviction and order of sentence be quashed and set-aside and the accused be acquitted.

Conversely, the learned Additional Advocate General contended that the learned trial Court has rightly and correctly appreciated the evidence in its true perspective. He further contended that there is more than sufficient material on record which clearly shows that the accused had committed the crime. The evidence, which has come on record, is enough to convict the accused, therefore, he submitted that the impugned judgment of conviction and order of sentence need no interference and the appeal, which is devoid of merits deserves to be dismissed.

I have heard the learned counsel for the appellant and the learned Additional Advocate General for the respondent/State and have also gone through the record carefully.

To substantiate the charges framed against the respondent-accused and to bring home his guilt, the prosecution examined as many as 18 witnesses. However, the case of the prosecution mainly rests upon the statements of PW-1 (prosecutrix) PW-2 father of the prosecutrix, PW-3 mother of the prosecutrix and PW-8 Dr. Sonali Mahajan.

So far as the age of the prosecutrix is concerned, in her MLC Ext. PW8/B, her age has been mentioned as 20 years and the prosecutrix, while appearing in the witness-box as PW-1 on 20.07.2018, stated her age to be 26 years, which means that in the year, 2012, she was of 20 years of age. The prosecution has failed to produce any documentary evidence on record to prove the age of the prosecutrix. Even no radio-logical examination of the prosecutrix was got conducted by the prosecution in order to prove her age. Therefore, in view of the MLC Ext.PW8/B as well as the deposition of the prosecutrix before the Court, it can be presumed that at the time of the alleged incident, i.e. 10.03.2012, the age of the prosecutrix was 20 years and she was major.

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. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, Hon'ble Apex Court has held:-

"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. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."

It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The prosecutrix complaining of having been a victim of the offence of rape is not accomplice of the crime and there is, no rule of law that her testimony cannot be acted without corroboration on material particulars. Her testimony has to be appreciated on the principles of probabilities just as the testimony of any other witness and 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 Hon'ble Supreme Court has observed in a catena of decisions that the Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If the statement of the prosecutrix is of sterling quality and inspires confidence, then corroboration from other evidence need not be sought, but where the statement of the prosecutrix is shaky and does not inspire confidence then corroboration should be sought from other evidence collected during investigation.

In State of Himachal Pradesh Vs. Gian Chand, (2001) 6 SCC 71, it was held that that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on.

In the case of Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191, it was held that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix. Paras 9 to 14 of the judgment are reproduced as under:-

"9.In State of Maharashtra v. Chandraprakash Kewalchand Jain AIR 1990 SC 658, this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:-

“16.A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248, this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:-

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 circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

In State of Punjab v. Gurmit Singh and Ors.: AIR 1996 SC 1393, this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:

“8...The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix.... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self- respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury....

Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances…

** ** ** **

21….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 prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

In State of Orissa v. Thakara Besra and Anr. AIR 2002 SC 1963, this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. placing reliance on an earlier judgment in Rameshswar v. State of Rajasthan.

Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix"

There cannot be any dispute with the proposition of law laid down by the Hon'ble Apex Court in catena of pronouncements that in case of rape, evidence of prosecutrix must be given predominant consideration, and finding of guilt in case of rape can be based upon the uncorroborated evidence of the prosecutrix, but apart from above, Hon'ble Apex court has also held that if the story put forth by the prosecutrix is improbable and belies logic, placing sole reliance upon her statement would be violence to the very principles which govern the appreciation of evidence in a criminal matter. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in

Tameezduddin alias Tammu Vs. State of NCT of Delhi, (2009) 15 SCC 566, wherein it has been held as under:-

"9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.”

Now, reverting back to the facts of the case on hand. The moot point involved for consideration in this appeal is whether evidence adduced by the prosecution is credible and worthy of credence. The prosecutrix, who appeared in the witness box as PW-1, deposed that she was a teacher by profession and in the year, 2012, she was studying in B.A. 1st year. She was acquainted with accused Devender Kumar for many days, who told her that he was owner of Tara Murari Bus and promised her to marry with her. On 10.03.2012 at about 10.00 p.m., he had called her on telephone and asked her to come out side for the purpose of marrying with her. After that, she came out of her house and the accused met her on the road outside side her home, who took her in A white coloured Nano car bearing registration No. HP-32-B 1278 to Kyoli Nallah, which car was being driven by some person namely Pendru and said Pendru had dropped them at Kyoli Nallah and then left from there along with car. Accused asked Pendru to come next day so that they could be dropped at Bhulah. On that night on 10.03.2012, they stayed at the house of one Leela Devi, where the accused had forcibly made physical relations once with her on the pretext and promise of marrying her. On 11.03.2012 at about 11.00 am, they went in the same Nano car driven by Pendru to place Bhulah, from where, they went to a place Shankar Dehra by feet and stayed in the house of relatives of accused. On 12.03.2012, the accused had taken her to his home at about 11.00 am and there she came to know that the accused was already married and was having two children. Then she asked him to drop her at her home, but he promised her that he would get her married with his brother. Thereafter, she on her own had fled from the house of accused on 13.03.2012 and reached her home. She narrated the whole incident to her parents. After that on 19.03.2012, she alongwith her parents and some relatives went to police station and had registered FIR against the accused.

PW-2, who is the father of the victim, deposed that on 10.03.2012 after taking dinner, the prosecutrix had gone to her room at about 10.00 p.m and after some time, his wife had noticed that the prosecutrix was not in her room. Thereafter, they had searched her at home and around the village, but she was not found anywhere. On next day, he came to know that accused Devender Kumar, who was the owner of Tara Murari Bus, had abducted his daughter on the pretext of marriage. They had tried to search the prosecutrix, but she was not found anywhere. On 13.03.2012, the prosecutrix had returned to home and told his wife that the accused had taken her to Kyoli Nallah to his sister's quarter in a white colored Nano car, which was driven by one Pandru and had raped her against her wishes at Kyoli Nallah. She told that from there, the accused had taken her to Shankar Dehra and from there to his home at Rohara. On 19.03.2012, he alongwith the prosecutrix and his wife had gone to the police station and got registered the FIR.

PW-3, who is the mother of the prosecutrix, stated that on 10.03.2012, she along with her husband and the children were at their home and at about 10:00 pm they went to their rooms for taking sleep. They used to sleep in the first floor of their house and the prosecutrix used to sleep in the ground floor of their house. She along with her husband was in the kitchen, thereafter, she went to the room of the prosecutrix, who was not in her room. She alongwith her husband searched for her in the nearby area, but they could not found her. Next day, they came to know that the prosecutrix was taken by accused Devender Kumar. On 13.03.2012, the prosecutrix returned back to their home and disclosed that she was called telephonically by Devender Kumar in the night of 10.03.2012 and told her that he wanted to solemnize marriage with her. On that pretext, he called her to come out of home and the prosecutrix went out of home with him. She also disclosed that the accused took her in a Nano car driven by one Pendru to Keoli-nala in the quarter of accused's sister namely Leela Devi, where the accused committed sexual intercourse with her against her wish, forcibly. Next day he took her to Shanker-Dehra and on third day, he took her to his home in village Rada, where she came to know that the accused was already married and he was having two sons. The prosecutrix also disclosed that the accused told her that he would solemnize her marriage with his younger brother.

Thus, perusal of the entire evidence on record would reveal that the prosecutrix was acquainted with the accused for the last more than six months and she herself stealthily went out with the accused at 10 PM on the night of 10.03.2012 after the accused had called her on her mobile phone. The accused met her on the road outside her house and had taken her in a Nano car, which was being driven by one Pendru, who dropped them at Kyoli nallah. In her cross-examination, the prosecutrix admitted that there were so many houses situated around her parental house. However she had not raised any protest while accompanying the accused. As per her deposition, on 10.03.2012, both of them stayed at the house of one Leela Devi at Kyoli nullah and she also admitted that at Kyoli nallah, there were other houses situated adjoining to the house where both of them had stayed on 10.03.2012 and on that night, the accused had made forcible physical relations with her on the pretext and promise of marriage. However, she had neither lodged any complaint to anyone nor raised any alarm when the accused had allegedly made forcible physical relations with her. It has also come in evidence that they went in the same Nano Car being driven by Pendru to place Bhulah, on 11.03.2012 at about 11.00 a.m. from where, they went to a place Shankar Dehra by feet and stayed in the house of relatives of accused on 12.03.2012 at Shankar Dehra. The prosecutrix had failed to explain as to why she accompanied the accused on 11.03.2012 despite the fact the he had allegedly committed forcible sexual intercourse with her on 10.03.2012. In cross-examination, the prosecutrix stated that she had conversation at Shankar Dehra with the relatives of the accused throughout the day and they remained together there in the night of 11.03.2012 in the room. However she did not disclose to the relatives of the accused that the accused had committed forcible sexual intercourse with her. On third day ,i.e. on 12.03.2012, the accused took her to his home in village Rada, but there also, the prosecutrix had not disclosed to anyone that the accused had committed forcible sexual intercourse with her. It is highly improbable that with an intent to marry the prosecutrix, the accused would take her to his own house where he was staying with his wife and two children. It has also come in the evidence that the prosecutrix was having mobile phone with her w.e.f. 10.03.2012 to 13.03.2012. However, surprisingly she had not contacted her parents when the accused had allegedly committed forcible sexual intercourse with her. In her cross-examination, she feigned ignorance as to for how many times, she contacted with her parents telephonically in between 10.03.2012 to 13.03.2012. She also admitted in cross-examination that for the last 5-6 months, she was in contact with the accused and she was even at conversation with him after registration of the case through her mobile phone. She had voluntarily travelled to various places and stayed with the accused w.e.f.10.03.2012 to 13.03.2012 but never complained to anyone about the alleged rape which indicates towards her consenting conduct.

There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the accused had actually wanted to marry the prosecutrix or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376, IPC.

In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily of her own free will accompanied the accused to get married to him and thereafter developed physical relationship with him. The Hon’ble Supreme Court held that it was not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused. Relevant portion of the judgment reads as under:-

“17.4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another.

17.5. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.

------ ------ ----- ----- ----

To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre- decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to any one. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the police.

If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of “false promise of marriage” has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be leveled against the appellant, in light of the aforementioned fact situation.”

In the instant case, from a close reading of the statement given by the prosecutrix, it is easily discernible that the accused had not committed forcible sexual intercourse with her. The only point urged on the side of the prosecution is that since the accused had given her promise to marry, she had given her consent for sexual intercourse due to misconception. Admittedly, the prosecutrix is a teacher by profession and was major at the relevant time and if she gave consent even on any of the assumptions and had sexual intercourse with the accused, she will under all circumstances and in all respect be considered to be a consenting party. She had willfully submitted herself to the appellant to have sexual intercourse with her and such consent given by the prosecutrix to have sexual intercourse with the accused, cannot be said to be given under a "misconception of fact". It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of any misconception created in her mind.

So far as the medical evidence is concerned, it does not support the case of prosecution. PW-8 Dr.Sonali Mahajan had conducted medical examination of the prosecutrix and issued MLC Ext.PW8/A wherein she opined that the person examined has been exposed to sexual intercourse. The relevant portion of her deposition before the Court reads as under:-

“……..During the general examination, the patient was conscious, oriented to time, place and person. On her physical examination average built, pulse 80 per minute, BP 100/70 mm, height 5.3 inch and weight was 50 kg. Breast were well developed, axillary hair were present, pubic hair was shaved. The person had changed the clothes and taken bath. There was no mark of injury seen on body part.

On local examination, labia majora, labia minora was well developed. Hymen had multiple tears at 5 O’clock, 7 O’clock and 9 O’clock position which were healed. There was no tenderness, bleeding or swelling. On per vaginum examination admitted two fingers with ease.

…………… ------------ ----------

In my opinion, the person examined has been exposed to sexual intercourse. Time elapsed cannot be commented upon.”

The result of SFSL report Ext. PW8/C is reproduced as under:-

“(1) Blood and semen was not found on the exhibit-1 (underwear of the prosecutrix), exhibit-2 (vaginal slides of prosecutrix), exhibit-5 (pubic hair of Devinder Singh), exhibit-8a (bed sheet) and exhibit-8b (pillow cover).

(2) Blood was not found on the exhibit-3 (vaginal swab, prosecutrix), exhibit-4 (pants, Devinder Singh) and exhibit-7 (slacks, Devinder Singh, but human semen was found on these exhibits.

Human semen was found on the exhibit-6 (semen sample, Devinder Singh).”

Although, the Medical Officer (PW-8) deposed that as per her opinion, the prosecutrix had been exposed to sexual intercourse. However, her such deposition does not connect the accused with the commission of the offence of rape upon the prosecutrix. The perusal of deposition of the Medical Officer (PW-8) shows that there were no marks of injury seen on the body of the prosecutrix and there was no tenderness, bleeding or swelling on local examination of labia majora and labia minora. The medical evidence adduced on record by the prosecution otherwise nowhere indicates towards sexual intercourse committed by the accused. The Medical Officer had deposed that she had taken vaginal swab and vaginal slides of the prosecutrix and handed them over to police for chemical analysis. However, as per SFSL report Ext. PW8/C, no blood and semen was found on the underwear and vaginal slides of the prosecutrix as well as on the pubic hair of accused, bed-sheet and pillow cover. Similarly, blood was not found on the vaginal swab of the prosecutrix, pants and slacks of the accused, but human semen was found on these exhibits. However, from the perusal of the aforesaid report Ext.PW8/C, it cannot be said that the accused had committed rape upon the victim as the prosecution has failed to obtain any report from the Biology and Serology Division of FSL to the effect that any DNA profile obtained from the vaginal swab and vaginal slides matched with the DNA profile obtained from the blood sample of the accused. In fact no DNA test was conducted in order to match the human semen detected on the vaginal swabs of the prosecutrix with the blood sample of the accused. The Medical Officer (PW-8) also admitted in her cross-examination that she had not mentioned the duration of alleged sexual intercourse in the report Ext.PW8/B. Thus the medical evidence nowhere connects the accused with the commission of offence of rape upon the prosecutrix.

There is another glaring aspect of the case as the incident had taken place on 10.03.2012 but the matter was reported to the police on 19.03.2012.There is no satisfactory explanation for the delay in lodging the FIR. PW-1 deposed before the Court that she narrated the whole incident to her parents on 13.03.2012 and after that on 19.03.2012, she alongwith her parents and some relatives went to the police station and registered FIR against the accused. It is quite strange that the prosecutrix had gone missing on 10.03.2012 and her parents had not even cared to lodge a missing report. There is no explanation for either the failure to lodge a missing complaint or the delay in filing an FIR, which opens the possibility of introduction of a coloured version, exaggerated account or concocted story. According to the prosecution case, the prosecutrix had gone missing on 10.03.2012. If the prosecutrix had gone missing on the aforesaid date, her parents should have gone to the police station to lodge a missing report which could have prompted the Investigating Officer to act accordingly. It is worthwhile to mention that in rape cases the delay in lodging FIR by the prosecutrix is not unusual on account of trauma and agony suffered as also the fear of social stigma. However, what prevented the parents of the prosecutrix to lodge a missing report remains unanswered. In view of the settled proposition of law as well as on the above conduct of the parents, no reasonable and plausible explanation has been tendered as to why the FIR was lodged belatedly after knowing that the prosecutrix was missing since 10.03.2012 and after knowing that she was subjected to rape by the accused on the same night. Therefore, the delay in lodging FIR creates a suspicion about the version of the prosecution.

Thus, the learned trial Court has erred in ordering the conviction of the appellant because the prosecution has failed to prove its case against the appellant beyond the shadow of reasonable doubt.. It is a settled preposition of law that the prosecution is required to establish its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. Whenever, a doubt arises in the persecution story, benefit of the same has to be extended to the accused.

There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing a rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out. The Supreme Court in Radhu vs. State of Madhya Pradesh, reported in 2007 Cri.L.J. 4704 had in this context noted as follows:-

"5…..The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case."

In Abbas Ahmed Choudhary Versus State of Assam, (2010) 12 SCC 115, the Hon'ble Supreme Court has held in para-11 that:-

"11.We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

Keeping in view the overall facts and circumstances of the case, this Court is of the opinion that the prosecution has failed to establish its case against the appellant/accused beyond reasonable doubt. The learned trial Court fell in error in ordering the conviction of the appellant and the reasons given by the trial Court in its judgment/order for convicting him are perverse and not at all sustainable. Hence, the instant appeal is allowed and the impugned judgment of conviction and order of sentence dated 30.06.2023, passed by learned Sessions Judge, Mandi, District Mandi, HP, in Sessions Trial No.28/2022/2012, are set aside. The appellant, who has already served the sentence of more than two years, is acquitted of the charges framed against him.

The appellant be set at liberty forthwith, if not required in any other case. Fine amount, if deposited, be refunded to the appellant. Release warrant be prepared forthwith.

In view of the provisions of Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023, the appellant is directed to furnish 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 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 Hon’ble Supreme Court.

The appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.