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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Dharam Chand Chaudhary, J.
Rajinder Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr. A. No. 565 of 2017
Decided On : 03-08-2018
Rape - Consent - Section 375, Section 376, Section 494 IPC - The court discussed the legal provisions of rape and consent under Section 375 IPC and the interpretation of consent as an act of reason coupled with deliberation. The court also highlighted the principle that the prosecutrix's statement cannot be universally and mechanically applied to every case of sexual assault, and emphasized the need for careful consideration of all relevant circumstances to ascertain consent. The judgment also referenced previous cases to support the conclusion that the prosecutrix's consent for sexual intercourse could not be established in the given circumstances.
Fact of the Case:
The accused was convicted for the offence of rape under Section 376 IPC for allegedly having physical relations with the prosecutrix under false pretenses of marriage. The accused appealed the conviction, arguing that the evidence was based on surmises and conjectures, and the prosecutrix's testimony was full of contradictions and omissions.
Finding of the Court:
The court found that the prosecution failed to prove beyond reasonable doubt that the accused had committed the offence of rape. The court highlighted the lack of evidence to establish that the prosecutrix was subjected to sexual intercourse against her will and without her consent. The court also emphasized that the prosecutrix's consent could not be established based on the evidence and circumstances of the case.
Issues: The issues revolved around the credibility of the prosecutrix's testimony, the interpretation of consent in the context of the alleged sexual intercourse, and the sufficiency of evidence to establish the accused's guilt beyond reasonable doubt.
Ratio Decidendi: The court's decision was based on the principle that the prosecutrix's consent for sexual intercourse could not be established in the given circumstances, and the prosecution failed to prove the accused's guilt beyond reasonable doubt.
Final Decision: The court acquitted the accused of the charge framed against him under Section 376 IPC, quashed the impugned judgment, and ordered the accused's immediate release.
Dharam Chand Chaudhary, J.
Appellant Rajinder Kumar herein is a convict (hereinafter referred to as the accused). He was booked by the police of Police Station Bharmour, District Chamba for the commission of offence punishable under Sections 376, 420 and 494 IPC vide FIR No. 10/2014 Ext. PW-10/A, with the allegations that he had physical relations with the prosecutrix (name withheld), for the last 3 years. He also belongs to the same area to which the prosecutrix belongs. On 12.1.2014, he brought the prosecutrix to Chamba and booked a room in hotel Ashiana near Sheesh Mahal. He subjected her to sexual intercourse in the said room. On the next day i.e. 13.1.2014, she was brought by him to Dalhousie, where he solemnized Court marriage with her. The prosecutrix had sworn in affidavit Ext. PW- 12/A whereas accused Ext. PW-12/B before the Executive Magistrate Dalhousie in this regard. Thereafter, the accused told the prosecutrix to return to her parental house. She went there and later on contacted him to join his company in the matrimonial home, however, he denied there being any relation with her. On this, with a view to get her name entered in the record of the Gram Panchayat as his wife, she went to the office of Gram Panchayat at Sunhara and asked the Secretary to enter her name being the wife of the accused. The Secretary in turn informed her that the accused is already married with one Kiran Kumari and that the entry to this effect stood already made in the record of the Gram Panchayat on 5.1.2014.
2. On finding that the accused ravished her at the pretext of solemnization of marriage with her and having felt humiliated as well as annoyed with him reported the matter to the Superintendent of Police, Chamba vide complaint Ext. PW-3/A. The complaint so lodged by her was marked to Incharge A.H.T.U/Women Cell Chamba. HC Sunita (PW-9), who conducted preliminary enquiry in the matter and on finding an offence having been committed by the accused punishable under Section 376, 420 and 494 IPC, the complaint was forwarded to PS Bharmour for registration of FIR.
3. The investigation in the matter was conducted by ASI Ram Pal (PW-15). He moved an application Ext. PW-15/A and got the prosecutrix medically examined from PW-14 Dr. Richa Gupta, Medical Officer, Regional Hospital Chamba. The accused was arrested vide arrest memo Ext. PW- 15/B. An application Ext. PW-15/C was moved for his medical examination and the MLC is Ext. PA. PW-15 ASI Ram Pal during the course of investigation visited Ashiana hotel near old bus stand Chamba and prepared the site plan of room No. 104 vide Ext. PW-15/D and PW- 15/E. The identification memos Ext. PW-3/B and PW-15/A were prepared in the presence of witnesses. Bed Sheet Ext. P-3 produced by Bhim Sain (PW-5), was taken into possession vide seizure memo Ext. PW-1/B. The same was sealed in a parcel of cloth Ext. P-2 with seal “R”. The sample of seal Ext. PW-15/F was obtained separately. The visitors’ register of the hotel Ext. P-1 was also seized and taken into possession. On an application Ext. PW-6/A moved to Secretary Gram Panchayat Sunara, abstract of family register Ext. PW-6/B was obtained from its Secretary Roshan Lal (PW-6). The statements of the witnesses, including that of Bhim Singh Ext. PW-15/G were recorded as per their version. On the receipt of the report Ext. PX from the laboratory and on the completion of the investigation, report under Section 173 (2) Cr.P.C. was filed in the trial Court.
4. On perusal of the police report, learned trial Judge proceeded to frame charge for the commission of offence punishable under Sections 376 and 494 IPC against the accused. He was tried for the commission of the offence he allegedly committed, however, convicted only under Section 376 IPC as no case was found to be made out against him for the commission of the offence punishable under Section 494 IPC.
5. On his conviction, the accused has been sentenced and convicted to undergo rigorous imprisonmen
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