Point of Law: Section 375 defines rape: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions.

JUDGMENT :

(Sushil Kukreja, J.)

1. The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, lays challenge to the judgment/order of conviction/sentence dated 18.04.2018, passed by learned Additional Sessions Judge (I), Shimla, Camp at Rohru, H.P., in Sessions Trial No. 6R/ 7 of 2013, whereby the appellant/accused/convict, (hereinafter referred to as “the accused”), was convicted and sentenced to undergo rigorous imprisonment for three years under Section 66E of the Information and Technology Act (hereinafter referred to as “IT Act”) and to pay a fine of Rs.1,00,000/-( rupees one lac) and in default of payment of fine to further undergo simple imprisonment for three months. The accused was further sentenced to undergo rigorous imprisonment for a period of two years under Section 67 of the IT Act and to pay a fine of Rs. 1,00,000/-(rupees one lac) and in default of payment of fine to further undergo simple imprisonment for two months. The accused was also sentenced to undergo rigorous imprisonment for a period of ten years under Section 376 of the Indian Penal Code (hereinafter referred to as “IPC”) and to pay a fine of Rs. 50,000/- (rupees fifty thousand) and in default of payment of fine to further undergo simple imprisonment for six months. All the sentences were ordered to run concurrently.

2. The case of the prosecution in brief is that on 28.03.2013, the prosecutrix presented an application to the Suprintendent of Police, C.I.D. Shimla, wherein it was alleged that in the year 200607, she was studying in Government Senior Secondary School, Sawra (Saraswati Nagar) and the accused used to run a shop in the name and style of ‘Verma Trading Company’ there. In the outer part of the shop, he used to sit himself, whereas, in the rear portion of the shop, his wife used to run a beauty parlour. As per the prosecutrix, firstly when she visited the beauty parlour of the wife of the accused for trimming her eyebrows, wife of the accused was present there. However, when second time she visited the beauty parlour, wife of the accused was not present there and taking advantage of her absence, the accused gave a toffee and chewinggum to her. After consuming the same, she felt intoxicated and the accused clicked her obscene photographs. The accused also told the prosecutrix to come to her shop at regular intervals or else, he would upload her obscene photographs on Whatsapp and Facebook. Under the garb of obscene photographs, the accused had committed rape with the prosecutrix. In the month of April, 2012, the prosecutrix went to Baddi in connection with her job and in the month of November, 2012, she came to know that accused had forwarded her obscene photographs to taxi drivers of Sawra area. The prosecutrix also came to know that accused had also done similar type of act with another girl, who was the resident of Kuddu and had forwarded her obscene photographs also to taxi drivers. On the complaint of the prosecutrix, the police investigated the matter and on 29.03.2013, Inspector Kamal Chand, Investigating Officer, went to Verma Trading Company alongwith independent witnesses and prepared spot map. The office of the Verma Trading Company was searched and one ipod along with one memory card of 2 GB, containing obscene photographs were recovered. The recovered articles were put in a cloth parcel, sealed with seal impression ‘A’ at five places and taken into possession. On the same day, Prem Lal, father of another girl presented three photographs of his daughter, six photographs of prosecutrix and one memory card of 2 GB, which were taken into possession. On 30.03.2013, Inspector Kamal Chand, went to Ghezta Studio at Sawra and recovered one hard disk from co-accused, Jishan Lal in presence of the witnesses and the same was taken into possession. Thereafter, the accused persons were arrested and Investigating Officer also clicked photographs of accused Bal Krishan with his official camera for the purpose of comparison and