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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sanjay Karol & P.S.Rana, JJ.
State of Himachal Pradesh - Appellant
Vs.
Pawan Kumar son of Sh Sanget Ram - Respondent
Cr. Appeal No.485 of 2008
Decided on: January 7, 2015
Rape - Evidence - IPC 375 - 21 weeks pregnancy, passive consent, and lack of injury - The court found that the prosecution failed to prove the case beyond reasonable doubt. The testimony of the prosecutrix was not found to be trustworthy or reliable, and the court concluded that the case was one of passive consent on the part of the prosecutrix. The judgment emphasized the importance of proving the elements of rape under Section 375 of the Indian Penal Code and highlighted the need for active consent in sexual intercourse. The court also considered the prospective nature of the amendment to Section 375 IPC, which raised the age of consent to eighteen years, and the material factors for determining consent in rape cases as per Section 8 of the Indian Evidence Act 1872.
Fact of the Case:
The prosecutrix alleged that the accused repeatedly raped her in a forest, resulting in a pregnancy. The accused denied the allegations, claiming the case was false.
Finding of the Court:
The court found that the prosecution failed to prove the case beyond reasonable doubt. It concluded that the testimony of the prosecutrix was not trustworthy or reliable and that the case was one of passive consent on the part of the prosecutrix.
Issues: The issues revolved around the trustworthiness of the prosecutrix's testimony, the presence of passive consent, and the failure to prove the case beyond reasonable doubt.
Ratio Decidendi: The judgment emphasized the importance of proving the elements of rape under Section 375 of the Indian Penal Code and highlighted the need for active consent in sexual intercourse. It also considered the prospective nature of the amendment to Section 375 IPC, which raised the age of consent to eighteen years, and the material factors for determining consent in rape cases as per Section 8 of the Indian Evidence Act 1872.
Final Decision: The court dismissed the appeal filed by the State of HP, giving the benefit of doubt to the accused and holding that no miscarriage of justice was caused to the State of HP in the present case while acquitting the accused.
P.S.Rana, Judge.
Present appeal is filed against the judgment passed by the learned Additional Sessions Judge Mandi HP in Sessions trial No. 40 of 2003 titled State of HP Vs. Pawan Kumar decided on dated 26.3.2006.
BRIEF FACTS OF THE PROSECUTION CASE:
2. It is alleged by prosecution that about 4/5 months prior 19.6.2002 at place Char Kufri forest and rivulet accused repeatedly committed rape upon prosecutrix. It is alleged by prosecution that after committing rape upon prosecutrix accused threatened prosecutrix that he would kill the prosecutrix in case prosecutrix disclosed the incident of rape to anyone. It is alleged by prosecution that thereafter accused also committed rape upon prosecutrix for 4-5 times at place Char kufri forest. It is alleged by prosecution that on dated 20.6.2002 prosecutrix started vomiting and thereafter prosecutrix was taken by her father Babu Lal to Civil Hospital Karsog for medical check up and treatment. It is alleged by prosecution that medical officer after medical check up told that prosecutrix was pregnant. It is alleged by prosecution that thereafter prosecutrix along with her father Babu Lal went to Police Station Karsog where FIR Ext PW1/A was filed. It is alleged by prosecution that prosecutrix was medically examined by Dr. Jiya Lal on dated 20.6.2002 and medical officer observed that prosecutrix was pregnant for about 18-20 weeks. It is alleged by prosecution that thereafter Dr.Jiya Lal Civil Hospital Karsog issued MLC Ext PW7/B and referred the prosecutrix for opinion of expert to IGMC Shimla. It is alleged by prosecution that thereafter Dr. Ravinder Sharma medical officer conducted ultrasound of the prosecutrix. It is alleged by prosecution that as per ultra sonography film Ext PW8/A medical officer has given opinion that prosecutrix was carrying pregnancy of 21 weeks. It is alleged by prosecution that thereaf ter prosecutrix was examined by Dr. Anil Sood Cardiologist IGMC Shimla and medical officer opined that prosecutrix was heart patient. It is alleged by prosecution that thereafter on dated 10.7.2002 abortion of the prosecutrix was conducted under the supervision of Dr.Ajay Kumar Sood at Kamla Nehru Hospital Shimla. It is alleged by prosecution that Dr. Ajay Kumar Sood prepared report Ext PW12/C. It is alleged by prosecution that during the investigation of case the prosecutrix located the place of incident and site plan Ext PW10/B and Ext PW10/C were prepared. It is alleged by prosecution that accused was also medically examined by Dr.Jiya Lal in Civil Hospital Karsog and MLC Ext PW7/D was obtained. It is alleged by prosecution that on the request of Investigating Officer PW6 Man Singh panchayat Assistant issued certificate Ext PW6/C on the basis of entries of family register. Charge was framed against the accused by learned trial Court on dated 3.10.2005 and accused did not plead guilty and claimed trial.
3. Prosecution examined as many as twelve witnesses in support of its case.
| Sr.No. | Name of Witness |
| PW 1 | Sunita |
| PW 2 | Babu Lal |
| PW 3 | Satya Devi |
| PW 4 | Sunehru Devi |
| PW 5 | Amar Singh |
| PW 6 | Man Singh |
| PW7 | Dr.Jiya Lal |
| PW8 | Dr.Ravinder Sharma |
| PW9 | HC Devinder Singh |
| PW10 | Inspector Vijay Sen |
| PW11 | Dr.Anil Sood |
| PW12 | Dr.Ajay Kumar |
4. Prosecution also produced following piece of documentary evidence in support of its case:
| Sr.No. | Description. |
| Ext PW1/A | FIR |
| Ext PW6/A | Certificate |
| Ext PW7/A | Prescription slip |
| Ext PW7/B | MLC |
| Ext PW7/C | X-ray form |
| Ext PW7/D | MLC |
| Ext PW8/A | Ultrasonography film |
| Ext PW8/B & Ext PW8/C | Identification mark |
| Ext PW10/A | Identification mark |
| Ext PW10/B & Ext PW10/C | Spot map |
| Ext PW10/D | Statement |
| Ext PW10/E | Application for medical examination of accused |
| Ext PW10/G | Letter sent by medical superintendent Kamla Nehru |
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