IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 1680 of 2020
.
Decided on: 24.2.2021
State of Himachal Pradesh Petitioner.
Versus
Hitender Kumar and another Respondents.
Coram:
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1
For the petitioner:
r to Yes.
Mr. Hemant Vaid, Additional Advocate
General.
For the respondents: Nemo.
Sureshwar Thakur, Judge (Oral)
The genesis of the prosecution case, is encapsulated, in a statement made by the prosecutrix, statement whereof is comprised in Ex. PW-1/A, and, in pursuance whereof, formal FIR embodying therein commission of offences punishable under Sections 366, 376, 506 readwith Section 120B of the Indian Penal Code (For short IPC), became registered with Police Station, Theog.
2. Accused Hitender Kumar was charged, for, commission of offences punishable under Sections 366, 376, 506 and 120-B of IPC, whereas accused Dharmender Kumar was charged for commission, of, an offence punishable under Section 120-B of I.P.C.
1Whether reporters of the local papers may be allowed to see the judgment?
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Both the accused became acquitted by an order made on 20.7.2020, .
upon, Sessions Trial No. 7-T/7 of 2015.
3. The aforemade order of acquittal, upon, the afore Sessions Trial, as caused grievance to the State and, hence the State is led to institute there-against, the instant petition, seeking there-
through leave to institute an appeal there-against.
4. Both the prosecutrix and the principal accused, one Hitender Kumar, were uncontrovertedly major at the relevant stage and the further sequel thereof, is that the prosecutrix, was fully capacitated to mete a valid consent, to the accused, in the latter perpetrating sexual intercourse upon her. However, the prosecutrix has alleged that the sexual intercourse(s) perpetrated, upon her, by the accused, became sequelled by hers becoming intoxicated, by the accused, and, also her consent, became obtained under exercise, of, duress and compulsion, upon her, hence arising from the accused clicking or storing in his mobile phone, her nude pictures and threatening to make them viral, obviously, for constraining her to succumb to his sexual overtures. Even during the course of investigations, the prosecutrix, had made a statement, under Section 164 of Code of Criminal Procedure, before the learned Chief Judicial ::: Downloaded on - 02/03/2021 20:14:57 :::HCHP ...3...
Magistrate, statement whereof is embodied in Ex.PW-1/D, wherein .
she has made narratives hence containing overtones alike the one as become embodied in Ex. PW-1/A.
5. Be that as it may, nonetheless for the reasons to be assigned hereinafter, this Court is constrained, not to grant, the espoused leave to the State of H.P, to, appeal against the impugned judgment of acquittal given (a) the prosecutrix in her cross-
examination acquiescing, to a suggestion meted to her, qua hers voluntarily appending signatures on mark D-1, Mark whereof is an affidavit, of, marriage (b) also hers acquiescing to a suggestion qua hers appending signatures on mark D-2, mark whereof is an application seeking solemnization of marriage (c) hers making an admission, that in contemporaneity, vis-a-vis, hers appending her singatures thereon(s), rather in the presence of the oath commissioner concerned, hers not, making any disclosure, about lack of authenticity of contents thereof nor thereat hers making any disclosure to him that she had been compelled to swear an affidavit (d) lack of existence of nude photographs of the prosecutrix in the mobile phone of the accused, and, importantly also lack of dispatch to the FSL concerned, the mobile phone of the accused, for enabling the FSL concerned to ::: Downloaded on - 02/03/2021 20:14:57 :::HCHP ...4...
make an opinion thereon, vis-a-vis, existences therein, of, the nude .
photographs of the prosecutrix, does benumb, the espousal of the prosecutrix, that the accused had under threat of making viral, the afore purported nude photographs rather purportedly carried, in his mobile, and/or upon intoxicating her, his hence obtaining her consent, for hers, succumbing to his sexual overtures.
6. Further more, the admission made by the prosecutrix, that she had travelled in the company of the accused to Nalagarh, and, Jawala Ji, and, that en-routes, she has not made any resistance against the accused taking her company, and, (i) when the afore lack of resistance, made by the prosecutrix, to the accused taking to join his company, becomes entwined, with the factum of hers making a firm acquiescence, qua hers visiting Kalka Bazar, in the company of the accused, for purchasing clothes, (ii) does bolster, a conclusion, vis-a-
vis, the prosecutrix voluntarily taking to join the company of the accused, and (iii) qua sexual overtures as may have become perpetrated upon her, by the accused, rather not acquiring any tinge, of, compulsion or duress, becoming exercised, upon her, by the accused. Moreover, the prosecutrix in her cross-examination, acquiesces that she has made a statement, to the SHO, Police Station ::: Downloaded on - 02/03/2021 20:14:57 :::HCHP ...5...
Theog, that nothing had happened to her and rather, she had .
voluntarily accompanied the accused, also that no sexual assault became perpetrated upon her by the accused, and, (a) when the afore statement is read alongwith, the, tandem therewith hence admission existing in, the, cross-examination of the Investigating Officer, also does, bolster an inference, that the genesis of the prosecution, getting completely shattered, and, further that the father of the prosecutrix compelling the prosecutrix, to lodge, a false complaint against the accused.
In view of the above, there is no merit in the petition, and, the same is accordingly dismissed, and, the espoused leave is declined.
( Sureshwar Thakur), Judge.
24th February, 2021 ( Chander Bhusan Barowalia ),
(priti) Judge.
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