IMPORTANT POINT
Consensual sexual intercourse is not rape.

JUDGMENT

K.M. Joseph, J.

This is a criminal appeal by special leave challenging the order dated 11.5.2010 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 615 of 2002 affirming the conviction of the appellant under Sections 376 and 506 of the Indian Penal Code. In short, the case of the prosecution is as follows:

In December, 1999, the appellant committed rape upon P.W.2. It is also the further case that P.W.2 was intimidated by the appellant and another co-accused. The appellant was charged under Sections 376 and 506 IPC read with Section 34 of the Indian Penal Code and co-accused was charged under Section 506 read with Section 34 of the IPC. The trial Court found the case in favour of the prosecution and after convicting the appellant and co-accused sentenced the appellant to simple imprisonment for 7 years and a fine of Rs. 10,000/- with default sentence for the offence punishable under Section 376 of the IPC. He was also sentenced for 2 years for the offence punishable under Section 506 IPC. Both the sentences were to run concurrently. The co-accused stands acquitted by the High court whereas the appeal filed by the appellant was unsuccessful.

2. We heard learned counsel for the parties. The learned counsel for the appellant would point out that PW2, the prosecutrix was above the age of 16 years. Learned counsel for the appellant would seek to extricate the appellant from culpability on the score that the case of the prosecutrix is based on the FIR which is lodged 7 months after the alleged commission of the rape. There is delay of 7 months in lodging the FIR just as in the case of Vijayan v. State of Kerala 2008 (14) SCC 763. In this case also the prosecutrix was pregnant at the time of filing the complaint. The FIR was filed on 17.7.2000. whereas the incident is alleged to have taken place in December, 1999. He points out that it is allegedly filed after the prosecutrix told PW1 who accompanied her to Deputy Commissioner Office, Chamba. It is pointed out that according to the prosecution on 17.7.2000 when she came to Chamba to get medicines, she allegedly disclosed the incident to PW1 and appellant has been implicated thereafter. It is the case of the appellant that P.W.1 is a resident of the same village and that P.W.1 has spoken about having met the prosecutrix even earlier but nothing about the alleged rape was disclosed.

3. Per contra, the learned counsel for the respondent-State would point out that there was ample evidence in the form of testimony of the prosecutrix. Besides that learned counsel also drew our attention to the evidence of PW4 before whom the appellant himself made an extra judicial confession. So also attention was drawn to the evidence of PW5.

4. PW5 has also deposed that the appellant requested him with folded hands for compromise as he has committed wrong with PW2, the prosecutrix and he wanted to keep her and her child as his own.

5. The first question we have to consider is the impact of delay of nearly 7 months in lodging the complaint with the police. The appellant seeks support mainly from the judgment of this Court in the case of Vijayan v. State of Kerala 2008 (14) SCC 763. The High court in the impugned judgment has on the other hand relied upon the judgment of this Court reported in State of Himachal Pradesh v. Shree Kant Shekari AIR 2004 SC 4404. Therein, this Court has essentially relied upon the principles about the impact of delay as noticed by it in the judgment of this Court in Tulshidas Kanolkar v. State of Goa reported in 2003 (8) SCC 590 wherein rape was committed on a girl whose mental ability was undeveloped. This is what the court had to say about the fact of delay.

"...............In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts t