Kapil Dev Vs. State Of H.P.

Court: Himachal Pradesh High Court

Bench: JUSTICE Mr. Thakur

Kapil Dev vs State Of H.P. On 21 June 2017

Law Point:
Abduction and Rape – Sexual intercourse on pretext of marriage – Charge stands belied when prosecutrix permitted accused to sexually access her even when accused resiled from his promise and there is delay in lodging FIR – Accused acquitted.

JUDGEMENT

The instant appeal stands directed against the judgment rendered on 12.07.2013 by the learned Special Judge, Mandi, H.P. in Sessions trial No.45/2009, whereby, the learned trial Court acquitted the accused/appellant herein for his committing an offence punishable under Section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, however, he convicted the accused /appellant herein for his committing offences punishable under Sections 376 and 366 of the IPC and .

sentenced him as under:-

Sections Imprisonment imposed

376, IPC To undergo rigorous imprisonment for
seven years and to pay a fine of
Rs.30,000/- and in default of payment of fine to undergo further imprisonment for a period of one year.

366, IPC To undergo rigorous imprisonment for two years and to pay fine of Rs.20,000/- and in default of payment of fine amount to undergo further imprisonment for a period of one year.

All the sentences were ordered to run concurrently.

2. The facts relevant to decide the instant case are that the prosecutrix belongs to schedule caste and the accused met the prosecutrix while travelling in a bus and requested the prosecutrix to give her telephone number, to which the prosecutrix refused.

The accused had given his mobile number on a piece of paper to the prosecutrix. On 27.08.2008, at about 7.30 a.m., the accused tried to contact the prosecutrix on telephone number of her uncle, which phone was attended by Rukamni Devi, the cousin sister of the prosecutrix and the accused had told said Rukmani Devi that he was having some urgent work with the prosecutrix and he wanted to talk her, at which the .

prosecutrix attended the call of the accused at about 7.30 a.m. The accused requested the prosecutrix to come to Bali Chowki, at which the prosecutrix went to Bali Chowki where the accused met her at about 12 O’clock in the noon. The accused expressed his intention to marry the prosecutrix to which the prosecutrix refused on the ground that she was belonging to scheduled caste, but the accused pretended to of her caste and insisted upon to marry her on the same date and took the prosecutrix to Aut, where during the night he committed rape upon the prosecutrix twice and thrice on the pretext of marrying her. However, on the next date the accused disclosed that he was already married and he was having wife and children and he told the prosecutrix to go to her parental aunt’s house as he has to arrange money and the accused assured the prosecutrix to take her with him after bringing the money. Consequently, she went to her aunt’s house at Shamsi. Mani Ram, the father of the prosecutrix, on finding that the prosecutrix has not returned to her house on 27.08.2008, carried out search for her, but could not succeed and on .

29.8.2008 he came to know that the prosecutrix was in the house of his sister at Shamsi, at which he along with his wife and daughter Indira went to the house of his sister at Shamsi, where the prosecutrix met them.

The prosecutrix kept on waiting for the accused till 29.08.2008, but the accused did not turn and on 29.08.2008, the prosecutrix made a telephone call to the accused and asked him to marry her, at which the accused disclosed that he would get her married with some suitable boy. The prosecutrix thereafter disclosed about occurrence to her father Mani Ram and they kept on waiting for the accused, but the accused did not turn up. Thereafter, the prosecutrix alongwith her father approached Tek Singh, the then Pradhan Gram Panchayat, Devdhar and told him that the prosecutrix was enticed away by the accused on the pretext of marrying her and the accused committed sexual intercourse with the prosecutrix on such pretext. Tek Singh, thereafter also talked with the accused and tried to settle the matter, but the accused expressed his inability to solemnise the marriage with the prosecutrix, at which the .

prosecutrix was advised by said Tek Singh to report the matter with the police. On 30.08.2008, the prosecutrix along with her parents went to Police Post Bali Chowki from where they were taken to Police Station, Aut, where FIR Ex.PW1/A was lodged by the prosecutrix. Thereafter police completed all the codel formalities.

3. On conclusion of investigation(s), into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the competent Court.

4. The accused stood charged by the learned trial Court for his committing offences punishable under Section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Sections 376 and 366 of the IPC. In proof of the prosecution case, the prosecution examined 14 witnesses. On conclusion of recording of the prosecution evidence, the 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 innocence and pleaded false .

implication in the case.

5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein.

6. The appellant/convict stands aggrieved by the judgment of conviction recorded against him by the learned trial Court. The learned counsel appearing for the appellant/convict has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-

appreciation of the material on record. Hence, she contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal.

7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court standing based on a mature and balanced appreciation by it of the .

evidence on record and theirs not necessitating any interference, rather theirs meriting 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 prosecutrix is a major, hence, was empowered to purvey a valid consent to the accused for his holding her to coitus. However, the sexual encounter which occurred inter se the accused and the prosecutrix, is alleged to stand aroused by the accused making an allurement of marrying her. The testification, of the prosecutrix in respect of the accused obtaining her consent for subjecting her to sexual intercourse under a pretext or an allurement of marrying her, as comprised, in her examination-in-

chief when remains unshred of its efficacy “during”

the ordeal of an exacting cross-examination to which she stood subjected to by the learned defence counsel, thereupon it is rendered both creditworthy besides inspiring. Even though, in the testification of the prosecutrix, occurring in her cross-examination, she has made visible disclosures with respect to hers .

having a love affair with the accused, nonetheless, it will be unbefitting to therefrom conclude that the relevant sexual encounter which occurred inter se both, hence not emanating under a pretext of or an allurement of marriage meted to her by the accused.

Also the testification of the prosecution, is supported by her father Mani Ram, who deposed as PW-2 besides, is supported by Tek Chand, PW-13, to whom the incident was initially reported both by the prosecutrix and her father. Moreover, with echoings occurring in Ex.PW4/C, proven by Dr. Yamini (PW-4), with respect to the factum of the prosecutrix being exposed to sexual intercourse “does” constrain this Court to return findings of conviction upon the accused.

10. Be that as it may, dehors the aforesaid inspiring testimonies existing on record in depiction of the charge being hence proven, this Court is yet enjoined to not remain oblivious qua the factum of their occurring a delay in lodging of the FIR, whereupon, the testifications of the aforesaid prosecution witnesses also the testification of PW-4 .

may stand eroded. The relevant incident occurred on 27.08.2008, whereas, the FIR borne on Ex.PW1/A, stood lodged on 30.08.2008. However, the delay in the lodging of the FIR has remained unexplained. The omission of the prosecutrix to explain the delay in the lodging of the FIR, “does” constrain an inference that the version(s) testified by the prosecution witnesses concerned qua the relevant penal misdemeanor, losing their respective vigour. Aggravated momentum to the aforesaid blemish imbuing the prosecution case’ is acquired by the testification of PW-2, who in his testification articulated that the whereabouts of his daughter were unknown upto 29.08.2008, whereat, the prosecutrix was located at the house of her aunt at Samshi. PW-2 testifies that on 29.08.2008, he had located the prosecutrix at the house of his sister, at Samshi, upon his visiting the homestead of his sister while his being accompanied by his wife and his daughter. However, both the wife of PW-2 and his daughter, who accompanied him to the house of his sister at Samshi “stood” never examined by the prosecution, whereas, they constituted the best .

evidence in respect of the prosecutrix being located, on 28.08.2008, by PW-2 at latter’s sister’s house at Samshi. The effect of suppression of the aforesaid best evidence, in support of the aforesaid fact, is that it casts a grave spell of doubt upon the factum of the prosecutrix r”since” 27.08.2008 upto 29.08.2008 residing at her aunt’s house at Samshi, “more so”, when the sister of PW-2, at whose house the prosecutrix stayed from 27.08.2008 upto 29.08.2008 also remained unexamined. The further effect of suppression of the aforesaid evidence, dehors the factum of PW-3 deposing that both, the accused and the prosecutrix stayed in his guest house on 27.08.2008, is that thereafter also the accused and the prosecutrix stayed together elsewhere. The erection of the aforesaid inference has the further concomitant effect, of the prosecutrix prevaricating the factum of hers under the pretext of marriage being subjected to a singular sexual encounter “at Aut” by the accused. Corollary whereof, is that it is to be construed that she meted a valid consent to the accused, for the latter repeatedly holding to sexual .

intercourses.

11. In aftermath, when the accused subjected the prosecutrix to repeated sexual intercourses, thereupon, the prosecutrix, who is a major also when she is not demonstrated to be not fit to purvey a valid consent to r the accused for the latter sexually accessing her, renders hers holding repeated sexual engagements with the accused, to be bereft of any stain or element of theirs standing engendered by any pretext or allurement of marriage purportedly meted to her by the accused. Conspicuously, with the accused while holding her to an initial sexual encounter under a purported pretext of marrying her, his refusing to marry her, hence, his resiling from his promise, “constituted” a sufficient reason for the prosecutrix to refuse to thereafter mete consent to the accused to subject her to further sexual intercourses.

Contrarily, with the prosecutrix repeatedly permitting the accused to sexually access her “when” construed in conjunction with the delay in the lodging of the FIR, hence, unfolds the graphic evident fact of the accused in holding the prosecutrix to repeated sexual .

intercourses being bereft of any stain of any pretext or allurement of marriage purveyed by one to the other rather it appears that the prosecutrix consensually bereft of any allurement “engaging” in repeated sexual intercourses with the accused, whereupon the charge stands belied.

12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not 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 suffers from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

13. Consequently, the instant appeal is allowed and the impugned judgment rendered by the learned trial Court in Sessions Trial No. 45/2009 on 12.07.2013 is set aside. The accused/appellant is ordered to be released from judicial custody forthwith, if, he is not required in any other process of law. Fine amount, if any, deposited by the accused/appellant be refunded to him. Records be sent back forthwith.

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