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2017 DIGILAW 23 (HP)

State Of H. P. v. Anuj Kumar

2017-01-09

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT Sanjay Karol, J. —State has appealed against the judgment dated 18.10.2012, passed by learned Additional Sessions Judge (I), Kangra at Dharamshala, Himachal Pradesh, passed in Sessions Case No.2/2012, titled as State of Himachal Pradesh v. Anuj Kumar & another , challenging the acquittal of respondents Anuj Kumar and Parkash Dev Pathania (hereinafter referred to as the accused). 2. On 28.10.2011, prosecutrix (PW-2) got registered FIR No.238 of 2011, at Police Station Dharamshala, District Kangra, Himachal Pradesh, for commission of offences under Sections 376/506/34 of the Indian Penal Code, alleging that on false pretext of marriage, accused Anuj Kumar had been subjecting her to sexual intercourse and, as such, committed an act of sexual assault, and that his friend co-accused Parkash Dev Pathania threatened and intimidated her. Police investigated the matter and prima facie finding a case to be made out, presented challan in the Court for trial. 3. Accused Anuj Kumar was charged for having committed offences, punishable under the provisions of Sections 376 of the Indian Penal Code, and 506 read with Section 34 of the Indian Penal Code, and accused Parkash Dev Pathania, was charged for having committed an offence punishable under Section 506 read with Section 34 of the Indian Penal Code, to which both the accused pleaded not guilty and claimed trial. 4. Finding the testimony of the prosecutrix not to be inspiring in confidence, both the accused stand acquitted by the Court below. Hence, the present appeal by the State. 5. Out of 18 prosecution witnesses, we find the prosecution case rests solely upon the testimony of prosecutrix. 6. The fact that prosecutrix is a major is not in dispute. That she was gainfully employed and working at Dharamshala is evident from her unrebutted testimony. The fact that she knew both the accused from before also cannot be disputed from her unrebutted testimony. The fact that she was habitual to sexual intercourse is evident from the testimony of Dr. Gyatri Mahajan, (PW-1). 7. With these undisputed facts, we now proceed to appreciate the testimony of the prosecutrix. 8. In her examination-in-chief, she states that on 31.5.2010, on the asking of accused Anuj Kumar, she travelled to Patiala, where they stayed in the separate rooms of a hotel. After taking dinner, she felt giddy and became unconscious. Next morning, she found accused Anuj Kumar sleeping by her side. 8. In her examination-in-chief, she states that on 31.5.2010, on the asking of accused Anuj Kumar, she travelled to Patiala, where they stayed in the separate rooms of a hotel. After taking dinner, she felt giddy and became unconscious. Next morning, she found accused Anuj Kumar sleeping by her side. When confronted, he said nothing, save and except that he would marry her. Same day they returned to Dharamshala and since then, their physical intimacy strengthened. At Dharamshala, she hired a house, where he would visit her. On 14.10.2011, when she celebrated her birthday, she asked him to marry her, but he misbehaved by abusing and using filthy language. Also, he refused to marry her. On 20.10.2011, police contacted her and informed that accused Anuj Kumar had instituted an FIR against her. But, on further enquiry, such information turned out to be false. Her further requests to accused Anuj Kumar of marrying her, fell on deaf ears. Resultantly, on 28.10.2011, she got an FIR registered. 9. On first brush, it appears she is telling the truth and this despite the fact that she does not clarify as to what prevented her from immediately lodging the complaint either on 14.10.2011 or 20.10.2011, the time when accused Anuj Kumar refused to marry her. 10. It is only when we examine the cross-examination part of her testimony, we find her initial version to be absolutely uninspiring in confidence and the delay in lodging the FIR to be fatal. She admits that at no point in time, accused Anuj Kumar had induced her with any drug or intoxicant. She admits that he never tried to forcibly have sex with her. She admits that both of them had maintained separate residences at Shamnagar. She admits that of her own, she had gone to meet accused Anuj Kumar on 14.10.2011, the day when she celebrated her birthday. She admits that even at Patiala, she was allotted a separate room and made entry as such in the Register. They checked-in separately. Significantly, she had gone to Patiala, as is evident from her testimony, to attend a meeting where there were more than 500 persons, and with whom she had dinner. She did not dine separately with accused Anuj Kumar. Also, there was no occasion for him to have induced her with any drug or intoxicant. They checked-in separately. Significantly, she had gone to Patiala, as is evident from her testimony, to attend a meeting where there were more than 500 persons, and with whom she had dinner. She did not dine separately with accused Anuj Kumar. Also, there was no occasion for him to have induced her with any drug or intoxicant. Her version of her having felt giddy and become unconscious, after consuming food, is absolutely uninspiring in confidence, for it is not the case of the prosecution that anyone else had fallen ill as a result of consumption of such food at the party. Other evidence of her having become unconscious is not there. 11. To us, it appears that sex, if any, was consensual in nature. It appears that there was intimacy between the two, as has emerged through the testimony of Bainso Ram (DW-1), according to whom, while accused Anuj Kumar was in judicial custody, prosecutrix met him no less than 19 times. 12. Prosecutrix is an educated and working lady and does not hail from the remotest corner of the State. She could readily access public authorities. She was working and well versed with worldly affairs. She was conscious of her actions and resultant consequences. 13. To us, it appears to be a case of no evidence. 14. Apex Court in Uday v. State of Karnataka, (2003) 4 SCC 46 , after considering its earlier decisions, has observed as under: "21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. 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. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 15. What is the meaning of expression "having sexual assault without consent" stands elaborately discussed and explained by the apex court in Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 . We need not dilate thereupon, in view of settled position. 16. To us, it also does not appear to be a case of fraud or consent obtained under misconception of fact, as explained by the apex court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 . 17. Apex Court in State of Madhya Pradesh v. Munna, (2016) 1 SCC 696 , has clearly held that consensual intercourse would not amount to rape. 18. Consent accorded by the prosecutrix cannot be said to be on account of false promise of marriage. It is not that she submitted to the desires of the accused under some threat, coercion or misconception of fact. She was conscious of her actions and duly subjected herself to sexual intercourse, if any. 19. Insofar as evidence against co-accused Parkash Dev Pathania is concerned, there is only ocular version of the prosecutrix to the effect that when she tried to contact accused Anuj Kumar on his cell phone, this co-accused answered and threatened that "he was Rajput and could do anything to her". 19. Insofar as evidence against co-accused Parkash Dev Pathania is concerned, there is only ocular version of the prosecutrix to the effect that when she tried to contact accused Anuj Kumar on his cell phone, this co-accused answered and threatened that "he was Rajput and could do anything to her". We do not find such version to be inspiring in confidence, in view of contradiction, which has emerged in the cross-examination part of her testimony. She admits to have known accused Parkash Dev Pathania for having met him in the Office, but in the very next breath she states that she had received a call from an unknown person, who stated himself to be Dev Parkash Pathania, with whose voice, she was not conversant. Also, such version stands uncorroborated, as record of the mobile number on which such conversation took place, has not been placed or proved on record. 20. Hence, from the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they have been charged with. The circumstances cannot be said to have been proved by an unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. 21. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused Anuj Kumar forcibly committed rape on the prosecutrix, and he along with his co-accused Parkash Dev Pathania, in furtherance of their common intention, threatened her with dire consequences. 22. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties. 23. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Prandas v. The State, AIR 1954 SC 36 , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. Appeal stands disposed of, so also pending application(s), if any.