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1985 Supreme(HP) 44
High Court Of Himachal Pradesh
R.S.THAKUR
FITTA - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Criminal Appeal No. 11 of 1985
Decided On : 05/22/1985
For the appellant(s)/Petitioner(s)~Sh. A. K. Goel, Advocate, amicus curiae. For the respondent (s):Sh. L. S. Panta, Deputy Advocate General.
In a rape case, the burden of proof lies on the accused to establish that the sex act was consensual. The accused must provide evidence to support this claim, and the court will consider all the circumstances surrounding the incident to determine whether the sex act was consensual or not.
Headnote:
RAPE - Section 376 of the Indian Penal Code - Interpretation and Application - Consent of the Victim - Burden of Proof - Evidence and Circumstances - Rape vs. Consensual Sex.
Fact of the Case:
The accused, Fitta, was convicted by the Sessions Judge for the offence of rape under Section 376 of the Indian Penal Code. The prosecution alleged that the accused forcibly subjected Smt. Bhutto to sexual intercourse in a jungle while she was grazing cattle. The accused admitted to having sexual intercourse with the prosecutrix but claimed it was consensual.
Finding of the Court:
The court found that the accused failed to prove that the sex act was consensual. The court considered the circumstances surrounding the incident, including the accused's stealthy approach, the prosecutrix's resistance, the injuries she sustained, and the accused's subsequent threats. The court also noted the lack of evidence to support the accused's claim of a prior relationship with the prosecutrix.
Issues: 1. Whether the accused had forcible sexual intercourse with Smt. Bhutto or it was with her consent? 2. Whether the accused proved that his sex act with Bhutto was with her consent?
Ratio Decidendi: The court held that the accused failed to prove that his sex act with Bhutto was with her consent. The court relied on the following factors: * The accused's stealthy approach and the prosecutrix's resistance indicated that the sex act was not consensual. * The injuries sustained by the prosecutrix were consistent with a forced sexual encounter. * The accused's subsequent threats to the prosecutrix and her companions further supported the conclusion that the sex act was non-consensual. * The accused's claim of a prior relationship with the prosecutrix was not supported by any evidence.
Final Decision: The court dismissed the appeal and affirmed the judgment of the lower court, convicting the accused of rape under Section 376 of the Indian Penal Code.
R. S. Thakur, J.—This is a jail appeal filed by the appellant Fitta, hereinafter referred to as the accused, challenging the order of conviction passed against him by the Sessions Judge, Kangra Division camp at Chamba, on December 3, 1984 for the offence under section 376 of the Indian Penal Code, sentencing him to undergo rigorous imprisonment for a period of five years.
2. The prosecution case before the trial Court was that one Smt. Bhutto wife of Abhiya Ram and the accused Fitta belong to two neighbouring villages Pantehar and Chanohta respectively at a distance of about one k. m. from each other, (probably the village Pantehar is a part of village Chanohta). On May 19. 1984 said Bhutto alongwith other young children of her village like Jarmo and Kum. Meenki, etc. went to graze their respective cattle in the nearby jungle known as Kunahal. At about mid-day, the cattle of the companion graziers of said Smt. Bhutto strayed-away and they all then went to bring them back except said Smt. Bhutto who remained at the place where they were all together with her cattle. Meanwhile, the accused Fitta happened to bring his cattle there for grazing and finding that said Smt. Bhutto was alone over there he stealthily went to her, lifted her body on both his arms and them made her lie at a distance of about 10 yards from the place where she was sitting. He then snapped the string of her Salwar and in that process also tore a part of the Sal war. He then took off his own Kachha and subjected said Smt. Bhutto to forcible sexual intercourse. Although said Smt. Bhutto tried to resist the accused at that time but she could not do much as she was in an advance stage of pregnancy of six to eight months. She then raised an alarm shouting "BACHAO-B/CHAO". Her companion graziers on hearing her out-cries came to the place of incident when they found that the accused was still in a compromising position with Smt. Bhutto laying over her body. Her companion graziers then threw stones and tree-bark lying over there on the accused to scare him away and when he did not do so they even tried to pull him away from the body of Smt. Bhutto by his coat but to no avail and he left the body of Smt. Bhutto only after he had completed the sex act and while leaving the place of incident, he threatened all those present over there with dire consequences in case any one of them complained to anybody about the incident.
3. Immediately after this incident said Smt. Bhutto put on the torn Salwar and went to her house and narrated the entire incident to her husbands mother Smt. Sallo. The husband of said Smt. Bhutto Abiya Ram had gone to work as a labourer and when he returned home in the evening at about 6.00, said Smt. Bhutto again narrated the incident to him as well.
4. Next morning said Abhiya Ram took Smt. Bhutto to the police station at Bharmour where said Smt. Bhutto lodged a report against the accused as a result of which a case under section 376 of the Indian Penal Code was registered against him and after investigation the accused was challanged to stand his trial under section 376, I. P. C. and on the conclusion of the trial, he was convicted by the learned Sessions Judge as stated earlier.
5. With a view to bringing home the offence to the accused the prosecution has examined nine witnesses.
6. Dr. Arun Kapoor (PW 1) who was posted as the Medical Officer, Rural Hospital Bharmour at the relevant time, examined the prosecutrix after she lodged the report with the police station at Bharmour. He then found linear scratch mark of the left cheek of the prosecutrix and multiple abrasions on both buttocks and the back of thigs. There was no injury either on her body or in her genitals. Two slides of her vaginal smear were taken, out of which one was examined just over there wherein one dead sperm was detected. The other slide was given to the police for examination by the Chemical Examiner whose report was that said slide contained semen. This examination was do
