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2014 DIGILAW 250 (HP)

Bitu Ram v. State of Himachal Pradesh

2014-03-24

RAJIV SHARMA

body2014
JUDGMENT Per Rajiv Sharma, Judge. This appeal is directed against the judgment dated 12.10.2006 passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Sessions Trial No.23/2003, 66/2005, whereby accused/appellant, namely, Bitu Ram, was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of one year under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of six months under Section 506 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that during August 2000, PW3 prosecutrix was present in her house. The accused came to her house at about 6.00 P.M. and committed rape on her. The accused also threatened her with dire consequences in case she disclosed the incident to anybody. The prosecutrix conceived and after a period of about 5-6 months, PW4 Soma Devi, mother of the prosecutrix on getting suspicious that the prosecutrix was carrying pregnancy, made enquiries from the prosecutrix. She told PW4 Soma Devi about the rape committed on her by the accused. Thereafter, PW4 Soma Devi got drafted complaint, Ext.PW4/A on the basis of which, FIR Ext.PW8/A was registered in Police Station Joginder Nagar on 13.2.2001 by PW8 Prakash Chand. Medical examination of the prosecutrix was conducted by PW2 Dr. M.K. Rana on 14.2.2001. The prosecutrix was found to be carrying pregnancy of about 7-8 months vide MLC Ext.PW2/A. X-ray examination of the prosecutrix was conducted by PW1 S.K. Malhotra on 15.2.2001 for determining radiological age of the prosecutrix and on perusal of X-ray skiagrams, Ext.PW1/A to Ext.PW1/D, report Ext.PW1/E was issued by him and the radiological age of the prosecutrix was found to be between 17 to 19 years. PW11 Jugal Kishore visited the spot and prepared the spot map, Ext.PW11/A. He took into possession certificate Ext.PW4/B produced by PW4 Soma Devi vide memo Ext.PW4/C in the presence of PW9 Relu Ram. Medical examination of the accused was conducted by PW7 Dr. K.R. Sharma on 15.2.2001 and the accused was found capable of performing sexual intercourse. PW11 Jugal Kishore visited the spot and prepared the spot map, Ext.PW11/A. He took into possession certificate Ext.PW4/B produced by PW4 Soma Devi vide memo Ext.PW4/C in the presence of PW9 Relu Ram. Medical examination of the accused was conducted by PW7 Dr. K.R. Sharma on 15.2.2001 and the accused was found capable of performing sexual intercourse. He issued MLC Ext.PW7/C. Date of birth certificate of the prosecutrix Ext.PW5/A was procured from PW5 Tek Chand, Secretary Gram Panchayat Darahal along with copy of Pariwar Register Ext.PW5/B, according to which, date of birth of the prosecutrix was recorded as 31.8.1983. The investigation was completed and the challan was put up in the court after completing all codal formalities. 3. The prosecution examined as many as eleven witnesses in support of its case. The accused was examined under Section 313 Cr.P.C.. He denied case of the prosecution and claimed innocence. Learned trial court convicted and sentenced the accused for the offences punishable under Sections 376 and 506 of the Indian Penal Code vide judgment dated 12.10.2006. Hence, the appeal. 4. Mr. Lakshay Thakur, learned Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Additional Advocate General, has supported the impugned judgment dated 12.10.2006. 6. I have heard learned counsel for the parties and have gone through the pleadings and record carefully. 7. PW1, Dr. S.K. Malhotra, deposed that on 15.2.2001, the prosecutrix was brought to him by Amar Singh Constable No.427, Police Station Jogindernagar for X-ray examination for age verification. He issued his opinion report vide Ext.PW1/E after going through the skiagrams Ext.PW1/A to Ext.PW1/D. The prosecutrix had attained 17 years of age. However, she was below 19 years of age. On the same day, he conducted ultra sound of the prosecutrix for verification of pregnancy. He issued ultra sound report vide Ext.PW1/F. Average period of gestation was found between 32 to 33 weeks. The ultra sound film could not be taken because there was no facility of printer at that time in Zonal Hospital, Mandi, H.P. 8. PW2, Dr. M.K. Rana, deposed that on 14.2.2001, at about 12.20 P.M., she examined the prosecutrix. Her age was 17 years. The prosecutrix gave history of alleged rape in the month of perhaps August 2000 at about 6.00 P.M., by her nephew from distant relation, named Bittu. PW2, Dr. M.K. Rana, deposed that on 14.2.2001, at about 12.20 P.M., she examined the prosecutrix. Her age was 17 years. The prosecutrix gave history of alleged rape in the month of perhaps August 2000 at about 6.00 P.M., by her nephew from distant relation, named Bittu. According to her opinion, pregnancy was of about 7-8 months with positive sign of intercourse. She issued MLC Ext. PW2/A. 9. PW3, prosecutrix, deposed that in the month of August 2000, the accused came to her house and at about 6.00 P.M.. He committed rape on her. The accused threatened her with dire consequences in case she disclosed the incident to anybody. After rape, she conceived and her menstruation period stopped. She disclosed the incident to her mother after a period of about 5-6 months. Thereafter, her mother reported the incident at Police Station Jogindernagar. She later on delivered a female child in Civil Hospital Jogindernagar. She was student of 8th Class at that time. She was 16 ½ - 17 years old. In cross-examination, she deposed that she did not disclose about the rape to anyone after the incident. The accused was her nephew. The distance between her house and the house of the accused was about 15 minutes on foot. Her mother inquired her after about 6-7 months from the date of occurrence suspecting that she was pregnant. Her mother inquired her for about 2-3 days and during this period she did not disclose the name of anyone to her mother. She admitted that family of the accused and her family were not on visiting terms with each other. She told name of the accused after about 2-3 days on inquiry made by her mother. The accused remained in her house on the date of occurrence for about 10 minutes. Her younger brother came to the house when the accused left the house. Her clothes were smeared with blood, however, she did not show the same to her family members. The accused committed rape on her once and thereafter, he did not visit her house. She did not disclose the incident to her mother due to threatening given by the accused. She admitted that she had not reported the matter either to the police or to any person of the locality. 10. PW4, Soma Devi is mother of the prosecutrix. The accused committed rape on her once and thereafter, he did not visit her house. She did not disclose the incident to her mother due to threatening given by the accused. She admitted that she had not reported the matter either to the police or to any person of the locality. 10. PW4, Soma Devi is mother of the prosecutrix. She deposed that after suspecting that the prosecutrix was pregnant, she made inquires from the prosecutrix and thereafter, the prosecutrix told that the accused had committed forcible sexual intercourse with her about 5-6 months back. The prosecutrix did not narrate the incident due to fear. Thereafter, she consulted the Advocate and filed the complaint Ext.PW4/A in the Court at Jogindernagar. During investigation, she had handed over middle standard certificate, Ext.PW4/B to the police vide memo Ext.PW4/C. In cross-examination, she deposed that the accused used to visit her house prior to lodging of the FIR. They had no enmity with the accused. She had not seen the accused and the prosecutrix talking with each other. She admitted that the prosecutrix did not disclose the name of anyone to her. She inquired her continuously for about 3-4 days. When she gave beatings to the prosecutrix, then she disclosed name of the accused. She also asked from the mother of the accused and also from the accused and his father. The accused denied that he had committed sexual intercourse with the prosecutrix. 11. PW5, Tek Chand, proved on record birth certificate of the prosecutrix, Ext.PW5/A and parivar register Ext. PW5/B. As per Panchayat record, date of birth of the prosecutrix was entered as 31.8.1983. 12. PW6, Prem Chand, deposed that the accused had identified the place of occurrence. Memo to this effect was prepared by the Police vide Ext.PW6/A. 13. PW7, Dr. K.R. Sharma, deposed that the prosecutrix was admitted in Civil Hospital Jogindernagar from 9.3.2001 to 13.3.2001. She delivered a normal female child on 9.3.2001 at 7.10 A.M.. She was discharged on 13.3.2001 at about 4.00 P.M.. On 15.2.2001, at about 11.00 A.M., he also medically examined the accused. He was found fit to perform sexual intercourse. He issued MLC Ext.PW7/C. 14. PW8, Parkash Chand, deposed that on 13.2.2001, on receipt of Ext.PW4/A, FIR, Ext.PW8/A was registered in the Police Station. 15. She was discharged on 13.3.2001 at about 4.00 P.M.. On 15.2.2001, at about 11.00 A.M., he also medically examined the accused. He was found fit to perform sexual intercourse. He issued MLC Ext.PW7/C. 14. PW8, Parkash Chand, deposed that on 13.2.2001, on receipt of Ext.PW4/A, FIR, Ext.PW8/A was registered in the Police Station. 15. PW9, Relu Ram, deposed that on 13.2.2001, Soma Devi handed over certificate Ext.PW4/B to ASI Jugal Kishore vide memo Ext.PW4/C in his presence. 16. PW10, HHC Yaqub Khan, deposed that on 9.1.2002 prosecutrix handed over discharge slip Ext.PW7/A to the police vide recovery memo Ext.PW10/A. 17. PW11, S.I. Jugal Kishore, deposed that he went to the spot and prepared the spot map vide Ext.PW11/A. He recorded statements of the witnesses. Soma Devi produced Ext.PW4/B vide memo Ext.PW4/C. The prosecutrix was got medically examined at CHC Jogindernagar on 14.2.2002. Accused got identified place of occurrence and identification memo Ext.PW6/A was prepared in the presence of witnesses Prem Chand and Prabhu Ram. The accused was produced before the Additional Chief Judicial Magistrate, Jogindernagar for recording his statement under Section 164 Cr.P.C. On 15.10.2001, DNA sample of accused was drawn in CHC Jogindernagar which was forwarded to Serologist Calcutta. The sample was returned unexamined with the report that due to heavy rush in the Laboratory at the end of the year, new sample be sent. The accused was asked to give fresh sample, to which he refused. The challan was put up after completion of the investigation. In cross-examination, he admitted that he was told by witness Umed during the investigation that the accused had been visiting house of the prosecutrix. 18. According to PW3 prosecutrix, the incident happened in the month of August 2000. The complaint, Ext.PW4/A was filed by PW4, Soma Devi, mother of the prosecutrix, in the court of learned Additional Chief Judicial Magistrate, Jogindernagar, Mandi on 12.2.2001. According to the averments contained in the complaint, Ext.PW4/A, prosecutrix told her that about 5-6 months back, she was alone at house and at about 6.00, when her brother was playing outside, accused entered the house. He gagged her mouth. He pushed her down. He broke string of her salwar and raped her. She tried to raise hue and cry, but did not succeed. He threatened the prosecutrix that he would kill her whole family in case she disclosed the incident to anyone. He gagged her mouth. He pushed her down. He broke string of her salwar and raped her. She tried to raise hue and cry, but did not succeed. He threatened the prosecutrix that he would kill her whole family in case she disclosed the incident to anyone. Thereafter, accused ran away from the spot. When the prosecutrix told her mother 5-6 days back about the incident, she was pondering over the matter. She disclosed the incident to husband of her daughter. In sequel to complaint, Ext.PW4/A, FIR, Ext.PW8/A, was registered at Police Station Jogindernagar on 13.2.2001 under Section 376 of the Indian Penal Code. Statement of the prosecutrix was also recorded under Section 161 of the Code of Criminal Procedure, wherein she stated that when she was doing domestic chores in her kitchen, the accused entered the room and latched the door. She questioned him. He gagged her mouth and pushed her. He removed her salwar upto to knees. She tried to raise hue and cry. The accused raped her for about 3-4 minutes. She cried, but she was not spared by the accused. Thereafter, the accused threatened her not to disclose the incident to anybody and left the house. She did not disclose the incident either to her mother or to anybody. When she was wearing school dress, her mother asked her why her abdomen was bulging. She did not disclose to her mother. Her mother kept inquiring her for about 2-3 days. Then she disclosed about the incident to her mother. She was not menstruating after the incident. However, when prosecutrix stepped into the witness box as PW3, she only deposed that in the month of August 2000, accused came to his house and at about 6.00 P.M., he committed rape on her. She has not at all mentioned in her statement that the accused entered the house and latched the door. Thereafter, he gagged her mouth when she tried to raise hue and cry. The manner in which the accused entered the house and committed rape on her has also not been disclosed in the complaint Ext.PW4/A and Ext.PW8/A. PW4, Soma Devi, deposed that the prosecutrix did not disclose name of the accused for about 3-4 days. It was only when she gave beatings to the prosecutrix, she disclosed name of the accused. 19. The manner in which the accused entered the house and committed rape on her has also not been disclosed in the complaint Ext.PW4/A and Ext.PW8/A. PW4, Soma Devi, deposed that the prosecutrix did not disclose name of the accused for about 3-4 days. It was only when she gave beatings to the prosecutrix, she disclosed name of the accused. 19. The age of the prosecutrix was between 17 to 19 years as per opinion report, Ext. PW1/E issued by PW1, Dr. S.K. Malhotra. Date of birth of the prosecutrix as per middle standard examination, Ext. PW4/B and Parivar Register, Ext. PW5/B was 31.8.1983. Thus, she was more than 16 years of age at the time of incident. 20. According to PW1 Dr. S.K. Malhotra, average period of gestation was 32 to 33 weeks. According to PW2, Dr. M.K. Rana, pregnancy was of about 7-8 months. She issued MLC Ext.PW2/A. According to PW7, Dr. K .R. Sharma, the prosecutrix remained admitted in Civil Hospital, Jogindernagar from 9.3.2001 to 13.3.2001. The prosecutrix gave birth to a female child on 9.3.2001 at 7.10 A.M and was discharged on 13.3.2001 at 4.00 P.M. vide discharge slip, Ext.PW7/A. The accused was also examined by PW7 Dr. K.R. Sharma. The accused gave blood sample for DNA test, which was sent to Serologist in Calcutta. It was returned unexamined due to heavy rush in the laboratory. According to the prosecution, the accused refused to give blood sample later on. 21. The prosecutrix was more than 16 years of age, as noticed hereinabove, at the time of incident. She was healthy girl. It has not come in the statement of PW3 prosecutrix that she resisted the accused, though as noticed above, in her statement recorded under Section 161 Cr.P.C., she stated that she tried to raise hue and cry, but her mouth was gagged. In examination-in-chief, she simply deposed that the accused came to her house and at about 6.00 P.M., he committed rape on her. In case she had raised hue and cry, her younger brother, who was playing outside the house, could definitely come back to the house after hearing cries of his sister. Her younger brother was about 14 years old. There are material improvements and contradictions in the testimony of the prosecutrix. 22. In case she had raised hue and cry, her younger brother, who was playing outside the house, could definitely come back to the house after hearing cries of his sister. Her younger brother was about 14 years old. There are material improvements and contradictions in the testimony of the prosecutrix. 22. As per Chapter 29 of Modi’s Medical Jurisprudence and Toxicology, 23rd Edition, signs of pregnancy in the living are classified as presumptive, probable and positive signs, which read as under :- Presumption signs:- (a) Cessation of menses (e) Morning sickness (b) Mammary changes (f) Quickening (c) Changes in the vagina (g) Sympathetic disturbances (d) Pigmentation of the skin (h) Frequency of micturition Probable Signs:- (a) Enlargement of the abdomen (e) Ballottement (b) Softening the uterus (f) Palpation of foetus (c) Changes in the cervix (g) Uterine soufflé (d) Intermittent uterine contraction (h) Endocrine tests Positive Signs:- (a) Foetal heart sounds (c) X-ray examination (b) Foetal movements (d) Sonography The abdomen begins to enlarge gradually after the 12th week. Up to the first 12 week, the gravid uterus remains in the cavity of the pelvis and around the 16th week rises just above the symphysis pubis and comes into contact with the abdominal wall. At the end of 20th week, it is midway between the symphysis and the umbilicus (navel). At the end of the 24th week, it reaches the level of the umbilicus and at the end of the 28th week, it is midway between the umbilicus and the xiphisternum. At the 36th week, it reaches the xiphisternum or epigastrium. At the 40th week, the uterus widens and recedes in its heights from the xiphisternum to 32 week level. The enlargement of the abdomen is considered a prima facie evidence of pregnancy during the childbearing period, but may also occur in ascites, ovarisan cysts, ovarian and uterine tumours, and phantom tumours. 23. After going through Chapter 29 of Modi’s Medical Jurisprudence and Toxicology, 23rd Edition, it is difficult to understand that PW4 Soma Devi, mother of the prosecutrix, would not have noticed signs of pregnancy, that too, when average period of gestation was 32 to 33 weeks and as per opinion of PW2 Dr. M.K. Rana, pregnancy was of about 7-8 months. The Prosecutrix delivered a healthy female child on 9.3.2001 at 7.10 A.M.. The mother would always notice changes associated with pregnancy. M.K. Rana, pregnancy was of about 7-8 months. The Prosecutrix delivered a healthy female child on 9.3.2001 at 7.10 A.M.. The mother would always notice changes associated with pregnancy. The conduct of PW3 prosecutrix and PW4 Soma Devi was unnatural. 24. It has come in the statement of PW4 Soma Devi that the accused used to visit her house prior to lodging of the report. According to PW11 S.I. Jugal Kishore, he was told by the witness that the accused had been visiting the house of the prosecutrix. The incident was not reported immediately by the prosecutrix and the mother remained oblivious to the pregnancy of the prosecutrix. According to the prosecutrix, she did not disclose the incident to anyone because of threatening given by the accused. It cannot be believed that a well-built girl, who had allegedly been raped, would not disclose the incident to her mother or anybody in the family and would remain silent for about 5-6 months. The prosecution has not led any evidence that the accused had threatened or induced fear to the prosecutrix before the alleged rape. The threat, as per the statement of the prosecutrix, was given after the incident. The prosecutrix had not even called her brother, who was playing outside the house. The behaviour of the prosecutrix not complaining to anybody at any stage after being allegedly raped by the accused is wholly unnatural. It is evident from the discussion made hereinabove and the entire ocular evidence that the act was consensual. 25. Their Lordships of Hon’ble Supreme Court in Deelip Singh alias Dilip Kumar vs. State of Bihar (2005) 1 Supreme Court Cases 88 have explained the term “without her consent” as under :- “17. The concept and dimensions of 'consent' in the context of Section 375 IPC has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case. Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows : "90. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case. Indian Penal Code does not define 'consent' in positive terms, but what cannot be regarded as 'consent' under the Code is explained by Section 90. Section 90 reads as follows : "90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception…." 18. Consent given firstly under fear of injury and secondly under a misconception of fact is not 'consent' at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. 19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.” 26. This is the scheme of Section 90 which is couched in negative terminology.” 26. Their Lordships of Hon’ble Supreme Court in Yedla Srinivasa Rao vs. State of A.P., (2006) 11 Supreme Court Cases 615 have held that while determining the consent of the victim would depend on facts of each case. Factors like the age of the girl, her education, her social status and likewise the social status of the boy has to be considered. If attending circumstances lead to conclusion that it was not only the accused but the prosecutrix was also equally keen, then in that case the offence is condoned. Their Lordships have held as under :- “10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr., (1984) Cri.L.J.1535. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. In this connection, reference may be made to a decision of the Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr., (1984) Cri.L.J.1535. In that case it was observed that in order to come within the meaning of misconception of fact, the fact must have an immediate relevance. It was also observed that if a fully grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact and it was held that Section 90 IPC cannot be invoked unless the court can be assured that from the inception accused never intended to marry her. Therefore, it depends on case to case that what is the evidence led in the matter. If it is fully grown up girl who gave the consent then it is different case but a girl whose age is very tender and she is giving a consent after persuasion of three months on the promise that the accused will marry her which he never intended to fulfil right from the beginning which is apparent from the conduct of the accused, in our opinion, Section 90 can be invoked. Therefore, so far as Jayanti Rani Panda (supra) is concerned, the porseuctirx was aged 21-22 years old. But, here in the present case the age of the girl was very tender between 15-16 years. Therefore, Jayanti Rani Panda's case is fully distinguishable on facts. It is always matter of evidence whether the consent was obtained willingly or consent has been obtained by holding a false promise which the accused never intended to fulfil. If the court of facts come to the conclusion that the consent has been obtained under misconception and the accused persuaded a girl of tender age that he would marry her then in that case it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfil the promise. Such consent cannot condone the offence. Reliance can also be made in the case of Emperor v. Mussammat Soma reported in (1917) Crl. Law Journal Reports 18 (Vol.18). Such consent cannot condone the offence. Reliance can also be made in the case of Emperor v. Mussammat Soma reported in (1917) Crl. Law Journal Reports 18 (Vol.18). In that case the question of consent arose in the context of an allegation of kidnapping of a minor girl. It was held that the intention of the accused was to marry the girl to one Dayaram and she obtained Kujan's consent to take away the girl by misrepresenting her intention. In that context it was held that at the time of taking away the girl there was a positive misrepresentation i.e. taking the girls to the temple at Jawala Mukhi and thereafter they halted for the night in Kutiya (hut) some three miles distance from Pragpur and met Daya Ram, Bhag Mal and Musammat Mansa and Musammat Sarasti was forced into marrying Daya Ram. This act was found to be act of kidnapping without consent. But, in the instant case, a girl though aged 16 years was persuaded to sexual intercourse with the assurance of marriage which the accused never intended to fulfil and it was totally under misconception on the part of the victim that the accused is likely to marry her, therefore, she submitted to the lust of the accused. Such fraudulent consent cannot be said to be a consent so as to condone the offence of the accused. Our attention was also invited to the decision of this Court in the case of Deelip Singh Alias Dilip Kumar v. State of Bihar, [2005] 1 SCC 88 wherein this Court took the view that prosecturix had taken a conscious decision to participate in the sexual act only on being impressed by the accused who promised to marry her. But accused's promise was not false from its inception with the intention to seduce her to sexual act. Therefore, this case is fully distinguished from the facts as this Court found that the accused promise was not false from its inception. But in the present case we found that first accused committed rape on victim against her will and consent but subsequently, he held out a hope of marrying her and continued to satisfy his lust. Therefore, this case is fully distinguished from the facts as this Court found that the accused promise was not false from its inception. But in the present case we found that first accused committed rape on victim against her will and consent but subsequently, he held out a hope of marrying her and continued to satisfy his lust. Therefore, it is apparent in this case that the accused had no intention to marry and it became further evident when Panchayat was convened and he admitted that he had committed sexual intercourse with the victim and also assured her to marry within 2 days but did not turn up to fulfil his promise before the Panchayat. This conduct of the accused stands out to hold him guilty. What is a voluntary consent and what is not a voluntary consent depends on the facts of each case. In order to appreciate the testimony, one has to see the factors like the age of the girl, her education and her status in the society and likewise the social status of the boy. If the attending circumstances lead to the conclusion that it was not only the accused but prosecutrix was also equally keen, then in that case the offence is condoned. But in case a poor girl placed in a peculiar circumstance where her father has died and she does not understand what the consequences may result for indulging into such acts and when the accused promised to marry but he never intended to marry right from the beginning then the consent of the girl is of no consequence and falls in the second category as enumerated in Section 375 -"without her consent". A consent obtained by misconception while playing a fraud is not a consent. 11. In this connection our attention was also invited to the decision of this Court in the case of Udav v. State of Karnataka, [2003] 4 SCC 46. A consent obtained by misconception while playing a fraud is not a consent. 11. In this connection our attention was also invited to the decision of this Court in the case of Udav v. State of Karnataka, [2003] 4 SCC 46. In this case also this Court held that for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, no straitjacket formula can be laid down but following factors stand out; (i) where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to; (ii) she was conscious of the fact that her marriage was difficult on account of caste considerations; (iii) it was difficult to impute to the appellant knowledge the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix. On the basis of the above factors this Court did not feel persuaded to hold that consent was obtained by misconception of facts on the part of the victim. But as already mentioned above, in the present case we are satisfied that looking to the antecedent and subsequent events that the accused never intended to fulfil the promise of marriage, this was not a case where the accused was deeply in love. In the present case in our hand the accused persuaded her for couple of months but she resisted it throughout. But, on one day he came to the house of her sister and closed the doors and committed forcible sexual intercourse against her will and consent, holding out a promise for marriage and continued to satisfy his lust. Therefore, this case stands entirely on different footing. We may aid a word of caution that the court of fact while appreciating evidence in such cases should closely scrutinize evidence while taking into consideration the factors like the age of the girl, her education, her social status and likewise the social status of the boy.” 27. Therefore, this case stands entirely on different footing. We may aid a word of caution that the court of fact while appreciating evidence in such cases should closely scrutinize evidence while taking into consideration the factors like the age of the girl, her education, her social status and likewise the social status of the boy.” 27. Their Lordships of Hon’ble Supreme Court in Raju and others vs. State of Madhya Pradesh, (2008) 15 Supreme Court Cases 133 have held that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. But, at the same time, they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. 12. 12. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined.” 28. Their Lordships of Hon’ble Supreme Court in State of Uttar Pradesh vs. Chhotey Lal, (2011) 2 Supreme Court Cases 550 have held that the expressions “against her will” and “without her consent” may overlap sometimes, but said two expressions have different connotation and dimension. Expression “against her will” would ordinarily mean that intercourse was done by a man with a woman despite her resistance and opposition, whereas expression “without her consent” would comprehend an act of reason accompanied by deliberation. Their Lordships have also discussed concept of word “consent”. Their Lordships have held as under :- “15. Be that as it may, in our view, clause Sixthly of Section 375 IPC is not attracted since the prosecutrix has been found to be above 16 years (although below 18 years). In the facts of the case what is crucial to be considered is whether clause First or clause Secondly of Section 375 IPC is attracted. Be that as it may, in our view, clause Sixthly of Section 375 IPC is not attracted since the prosecutrix has been found to be above 16 years (although below 18 years). In the facts of the case what is crucial to be considered is whether clause First or clause Secondly of Section 375 IPC is attracted. The expressions 'against her will' and 'without her consent' may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression 'against her will' would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression 'without her consent' would comprehend an act of reason accompanied by deliberation. 16. The concept of 'consent' in the context of Section 375 IPC has come up for consideration before this Court on more than one occasion. Before we deal with some of these decisions, reference to Section 90 of the IPC may be relevant which reads as under : “90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” 17. This Court in a long line of cases has given wider meaning to the word 'consent' in the context of sexual offences as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law (Second Edition), Volume 1 (1977) at page 422 the word 'consent' has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. In Jowitt's Dictionary of English Law (Second Edition), Volume 1 (1977) at page 422 the word 'consent' has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. It is further stated that consent supposes three things--a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. 18. Stroud's Judicial Dictionary (Fourth Edition), Volume 1 (1971) at page 555 explains the expression 'consent', inter alia, as under :- “Every 'consent' to an act, involves a submission; but it by no means follows that a mere submission involves consent," e.g. the mere submission of a girl to a carnal assault, she being in the power of a strong man, is not consent (per Coleridge J., R. v. Day, ER p.1027). Stroud's Judicial Dictionary also refers to decision in the case of Holman v. The Queen ([1970] W.A.R. 2) wherein it was stated : “But there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is ‘consent’. 19. In Words and Phrases, Permanent Edition, (Volume 8A) at pages 205-206, few American decisions wherein the word 'consent' has been considered and explained with regard to the law of rape have been referred. These are as follows : “In order to constitute ‘rape’, there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility, and, if she resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not ‘consent’. ‘Consent’, within Penal Law, Section 2010, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. People v. Pelvino. ‘Consenting’ as used in the law of rape means consent of the will and submission under the influence of fear or terror cannot amount to real consent. Hallmark v. State. People v. Pelvino. ‘Consenting’ as used in the law of rape means consent of the will and submission under the influence of fear or terror cannot amount to real consent. Hallmark v. State. Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed ‘consent’ and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes ‘consent’ as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and ‘consent’ one of the evidences of that condition. Likewise resistance is not a synonym of unwillingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of ‘consent’ and resistance as being proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting witness. State v. Schwab. 20. Broadly, this Court has accepted and followed the judgments referred to in the above judicial dictionaries as regards the meaning of the word 'consent' as occurring in Section 375 IPC. It is not necessary to refer to all the decisions and the reference to two decisions of this Court shall suffice. State v. Schwab. 20. Broadly, this Court has accepted and followed the judgments referred to in the above judicial dictionaries as regards the meaning of the word 'consent' as occurring in Section 375 IPC. It is not necessary to refer to all the decisions and the reference to two decisions of this Court shall suffice. In State of H.P. v. Mango Ram, a 3-Judge Bench of this Court while dealing with the aspect of 'consent' for the purposes of Section 375 IPC held at page 230 of the Report as under : “Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances”. 21. In the case of Uday v. State of Karnataka, this Court put a word of caution that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court at page 57 of the Report stated : “21.......In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.” 29. PW4, Soma Devi, did not even visit the Police Station when she was told by the prosecutrix about the incident. She filed the complaint in the court of learned Additional Chief Judicial Magistrate, Jogindernagar vide Ext. PW4/A. There is also delay of about 6-7 days in lodging the FIR even after the incident was narrated by the prosecutrix to her mother PW4 Soma Devi. According to PW4, Soma Devi, she was perplexed and pondering over the matter. She disclosed the incident to husband of her elder daughter. However, husband of her elder daughter was not cited as witness. According to PW4, Soma Devi, she was perplexed and pondering over the matter. She disclosed the incident to husband of her elder daughter. However, husband of her elder daughter was not cited as witness. The prosecutrix could remain under fear for few days, but not for about 5-6 months. There is inordinate delay in lodging the FIR. The incident occurred in the month of August, 2000 and the FIR was registered only on 31.1.2001. It is settled law that the delay in lodging the FIR is not fatal, however, the same has to be explained satisfactorily. In the instant case the delay has not been explained at all satisfactorily. Lodging of the FIR after a period of about 5-6 months casts doubt on the prosecution story. 30. Their Lordships of Hon’ble Supreme Court in Ramdas and others vs. State of Maharashtra (2007) 2 Supreme Court Cases 170 have held that though mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case. In this case, FIR was lodged eight days after the alleged occurrence, for which no satisfactory explanation was rendered. Their Lordships have held as under :- “24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See AIR 1956 SC 216 : Pandurang and others vs. State of Hyderabad). Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.” 31. Their Lordships of Hon’ble Supreme Court in Vijayan vs. State of Kerala (2008) 14 Supreme Court Cases 763 have held that in the cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, especially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR, it will be every hazardous to convict on such sole oral testimony. “5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defence-less. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defence-less. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.” 32 Their Lordships of Hon’ble Supreme Court in Satpal Singh vs. State of Haryana (2010) 8 Supreme Court Cases 714 have explained necessity of prompt FIR as under :- “15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [vide State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15 SCC 582].” 33. Their Lordships of Hon’ble Supreme Court in State of Andhra Pradesh vs. M. Madhusudhan Rao, (2008) 15 Supreme Court Cases 582 have held that delay in lodging the FIR results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only get bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Their Lordships have held as under :- “30. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. 31. In the present case, as noted supra, First Information Report in regard to the alleged occurrence on 19th April, 1996 was lodged on 22nd May, 1996. Admittedly after her discharge from the hospital on 22nd April, 1996, the complainant went to her parents' house and resided there. In her testimony, the complainant has deposed that since no one from the family of the accused came to enquire about her welfare, she decided to lodge the First Information Report. Admittedly after her discharge from the hospital on 22nd April, 1996, the complainant went to her parents' house and resided there. In her testimony, the complainant has deposed that since no one from the family of the accused came to enquire about her welfare, she decided to lodge the First Information Report. No explanation worth the name for delay in filing the complaint with the police has come on record. We are of the opinion that this circumstance raises considerable doubt regarding the genuineness of the complaint and the veracity of the evidence of the complainant (PW-1) and her father (PW3), rendering it unsafe to base the conviction of the respondent upon it. Resultantly, when the substratum of the evidence given by the complainant (PW-1) is found to be unreliable, the prosecution case has to be rejected in its entirety.” 34. Their Lordships of Hon’ble Supreme Court in Rajesh Patel vs. State of Jharkhand, (2013) 3 Supreme Court Cases 791 have held that the court should have appreciated the evidence with regard to the delay in lodging the FIR by the prosecutrix. 35. Mr. M.A. Khan, learned Additional Advocate General, has placed strong reliance in State of H.P. vs. Shree Kant Shekari, (2004) 8 Supreme Court Cases 153. In this case, there was delay of six months, however, age of the prosecutrix was 14 years. She was not aware of the consequences. In the present case, the prosecutrix was more than 16 years of age. She was aware of the consequence. She remained silent for more than 5-6 months after the incident. The conduct of the prosecutrix was also unnatural. 36. Mr. M.A. Khan, learned Additional Advocate General, has also argued that the prosecutrix, in her statement recorded under Section 161 Cr.P.C., has specifically mentioned that the accused entered the room and latched the door. Thereafter, he gagged her mouth and removed her salwar. However, while stepping into the witness box, she has not narrated the manner in which the accused entered the room. 37. Their Lordships of Hon’ble Supreme Court in Ram Swaroop and others vs. State of Rajasthan, (2004) 13 Supreme Court Cases 134 have held that the statement recorded under Section 161 Cr.P.C. cannot be given undue importance and cannot be treated as evidence, but it may be used for the limited purpose of impeaching the credibility of a witness. 37. Their Lordships of Hon’ble Supreme Court in Ram Swaroop and others vs. State of Rajasthan, (2004) 13 Supreme Court Cases 134 have held that the statement recorded under Section 161 Cr.P.C. cannot be given undue importance and cannot be treated as evidence, but it may be used for the limited purpose of impeaching the credibility of a witness. Their Lordships have held as under :- “23. We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under S. 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under S. 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. We find that in paragraph 6 of the judgment, the High Court while dealing with the evidence of P.W. 7 has clearly treated the statement of P.W. 7, recorded in the course of investigation, as substantive evidence in this case. The High Court observed :- "He is consistent in his statement u/S. 161, Cr. P. C. that while he along with Kishore (P.W. 10) were sitting in front of the house of Kishore, which is just near the Shiv Temple, Ramswaroop and his sons Ram Kalyan and Hiralal armed with lathies came and gave beating to Bhanwar Lal and specifically head injury is attributed to Ramswaroop. In the statement in Court, he only attributed injuries to Hiralal and Ram Kalyan. Even he is consistent on the fact that while Madan Lal and his mother came and tried to save Bhanwar Lal from these persons, they were caught hold by Dakhan and Ram Kanya and Dakhan and Ram Kanya have given beating to Madan Lal and his mother," 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under S. 161 of the Code of Criminal Procedure. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous.” 38. In our view the High Court ought to have considered his deposition rather than his statement recorded under S. 161 of the Code of Criminal Procedure. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous.” 38. Their Lordships of Hon’ble Supreme Court in Surinder Kumar vs. State of Haryana, (2011) 10 Supreme Court Cases 173 have held that the statement recorded under Section 161 Cr.P.C. is not a substantive piece of evidence and it can be used only for the limited purpose of contradicting the maker thereof. Their Lordships have held as under :- “8. The trial Court based on the dying declaration Ex. PD alleged to have been made by the deceased-Kamlesh Rani before Shri P.K. Sharma (PW-2), Executive Magistrate, Chandigarh and after finding that it does not inspire confidence in the mind of the Court and being the only evidence appearing against the accused, after giving the benefit of doubt in his favour, acquitted from the charges levelled against him. On the other hand, the High Court relying on the dying declaration holding that it is extremely difficult to reject the dying declaration altogether and finding that in the said dying declaration the deceased had positively stated that she had been immolated by the accused/appellant, set aside the order of acquittal passed by the trial Court and found him guilty under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. In view of the same, the only question for consideration in this appeal is whether the dying declaration Ex. PD of Kamlesh Rani is reliable, acceptable and based on which conviction is sustainable. 11. In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as under : "10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8 1, para 18) (Emphasis supplied) (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P., (1976) 3 SCC 104 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See Munnu Raja v. State of M.P., (1976) 3 SCC 104 ) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar, (1983) 1 SCC 211 ) (iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 ) (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P., (1974) 4 SCC 264 ) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P., (1981) 2 SCC 654 ) (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455) (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769) (ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P., 1988 Supp SCC 152) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. (See State of U.P. v. Madan Mohan, (1989) 3 SCC 390 ) (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 )" 39. The findings given by the learned trial court that the accused had not given blood sample again is of no consequence. He had earlier given blood sample, which was not analyzed at Calcutta. The prosecution has failed to prove the case against the appellant. 40. In view of the observations and analysis, made hereinabove, the appeal is allowed and the judgment of conviction and sentence dated 12.10.2006 passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Sessions Trial No.23/2003, 66/2005 under Section 376 and 506 is set aside. The appellant is acquitted of the charges framed against him. The bail bonds are ordered to be discharged. The fine amount, if any deposited by the appellant is ordered to be refunded to him. Pending application(s), if any, also stands disposed of. No order as to costs.