(By Sh. Ashok Sharma vs Unknown
2021 Latest Caselaw 3937 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA


                ON THE    16th DAY OF AUGUST, 2021
                           BEFORE




                                                          .

           HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
                        &
           HON'BLE MR. JUSTICE SATYEN VAIDYA.





           CRIMINAL MISC. PETITION (MAIN) No. 1060 of 2021
Between
STATE OF HIMACHAL PRADESH



(BY SH. ASHOK SHARMA, ADVOCATE GENERAL,
WITH SH. VINOD THAKUR, SH. SHIV PAL MANHANS,

 ADDITIONAL ADVOCATE GENERALS, SH. J.S.
                                                    ......PETITIONER

 GULERIA AND SH. BHUPINDER THAKUR,
 DEPUTY ADVOCATE GENERALS).

    AND



 VIKAS DHIMAN SON OF SH. SUBASH DHIMAN,
  R/O VILLAGE NARWANA, P.O. YOL, TEHSIL




 AND POLICE STATION, DHARAMSHALA,
  DISTRICT KANGRA, H.P.





                                                  ..RESPONDENT
__________________________________________________________________
           This petition coming on for orders this day, Hon'ble





Mr. Justice Satyen Vaidya, passed the following:

                ORDER

Petitioner, by way of instant petition, has sought leave

to appeal against judgment dated 28.11.2020 passed by learned

Sessions Judge, Kangra at Dharamshala in Sessions Case

.

No. 36-D/VII/2015.

2. The petition has been filed on the grounds that the

petitioner has arguable case and there is every possibility of appeal

being accepted. It is contended that the judgment of acquittal,

sought to be challenged, is against facts and law. According to

3.

r to petitioner, learned trial Court has based its findings merely on

conjecture and hypothesis.

We have heard learned Additional Advocate General,

appearing for the petitioner and have also gone through the records

of the case.

4. Respondent was charged as under: -

"On 14.2.2014 during night at Yol in your shop and thereafter

till 21 October, 2014 you had committed sexual intercourse

with the prosecutrix by telling her that you will marry her and during this period you had taken her to various places such as

Hotel Sudha Amb and The Yellow Hotel, Baglamukhi and there also you had committed sexual intercourse with her by giving her assurance to marry her and you have thereby committed an offence punishable under Sections 376 IPC and within the cognizance of this Court."

5. After holding the trial, learned trial Court has acquitted

the respondent on the grounds that there was no eye witness to the

.

alleged crime and the uncorroborated version of prosecutrix (PW-24)

was not worth credence. Learned trial court, on appreciation of

evidence, found that prosecutrix in her statement made before the

Court did not claim that the respondent, before commission of sexual

intercourse with her for the first time, had promised to marry her. It

has also been held by learned trial Court that the allegation of

prosecutrix regarding threats being extended to her by respondent

was also not established. In addition, learned trial Court arrived at

conclusion that the subsequent conduct of prosecutrix belies her

version.

6. After considering the totality of circumstances, learned

trial Court has held that the sexual relations between prosecutrix

and respondent were consensual. Various circumstances have been

taken into account by learned trial Court viz. the conduct of

prosecutrix in not reporting the alleged incidents to any person and

her frequent free movements with respondent to various places

including a few hotels. It has also been taken note of that in the past

also prosecutrix was involved in another case of similar nature,

where she had levelled almost the same allegations against others

and in that case the acquittal of the accused therein was recorded

.

after trial.

7. The delay in lodging the First Information Report at the

instance of prosecutrix has also been taken to be another

circumstance to discredit the version of prosecutrix.

8. In Anurag Soni Vs the State of Chhattisgarh, (2019) 13

SCC 1, Hon'ble Supreme Court has held as under:

"12. The sum and substance of the aforesaid decisions would

be that if it is established and proved that from the inception

the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the

accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per

Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to

have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of

the IPC".

9. Hon'ble Supreme Court, in Pramod Suryabhan Pawar Vs

State of Maharashtra, (2019) 9 SCC 608 has held as under:

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards

.

the proposed act. To establish whether the "consent" was

vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of

marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the

10. sexual act."

Thus, in order to prove the charge against respondent in

the present case, prosecution had to prove firstly that a promise to

marry was made by accused, secondly such promise was false to the

knowledge of maker from the very inception and thirdly the consent

of prosecutrix was induced by such false promise. In addition,

immediate relevance of alleged false promise besides its direct nexus

to woman's decision to engage in the alleged sexual act also had to

be proved.

11. On careful perusal of the statement of prosecutrix

recorded during the course of trial, it is revealed that she had not

stated that on 14.2.2014, when respondent established sexual

- 6-

relations with her for the first time, she was induced to do so on the

pretext of marriage.

.

12. Her statement was to the effect that on 14.2.2014,

respondent had called her to his shop. After closing the shop, both

of them boarded the car and went towards Sidhbari. On way

respondent had purchased a cake and had proposed to celebrate

Valentine's Day at his shop. She has categorically stated that while

celebrating Valentine Day, respondent made inappropriate advances

towards her. She resisted, but respondent established sexual

relations with her. According to prosecutrix, it was thereafter that

she started to cry and then respondent said that he would marry her.

She further goes on to state that after about 10-12 days, she asked

respondent about marriage and he had sought some time as he had

to seek permission of his parents.

13. As per prosecutrix, respondent repeatedly indulged in

sexual intercourse with her, without her consent, from 14.2.2014 to

21.10.2014 at various places including his shop, his car and hotels.

The prosecutrix had further stated that though she objected to

sexual relations with respondent, but she was always threatened by

him that he would make her photographs public to defame her. She

also maintained that respondent refused to marry her on the pretext

that she belonged to Scheduled Caste and respondent was a Pandit

.

by caste.

14. The entire case of the prosecution was based on the

premise that the consent of prosecutrix was obtained by respondent

under misconception of fact as respondent had made false promise

to marry her. In our considered view, the reading of the statement of

prosecutrix does not lead to such conclusion. She nowhere stated

that she submitted to sexual activities with respondent under any

misconception of fact. As per her own version, the alleged promise of

respondent to marry prosecutrix was preceded by indulgence in

sexual activity by both.

15. The prosecutrix, though narrated the period during

which respondent remained in sexual relation with her and also the

places where such activities took place, but she did not make

utterance to the effect that during such period she remained under

misconception of fact on account of promise of marriage extended to

her by respondent.

16. Further, we have not found any corroboration to the

version of prosecutrix on the fact that respondent had extended

promise to marry her and thereby she was induced to indulge in

sexual activity with him.

.

17. There is no legal evidence on record to hold that the

consent of prosecutrix was given under misconception of fact. On the

other hand, the material on record suggests an inference that the

prosecutrix remained in relationship with respondent of her free will

and consent. The conduct of prosecutrix, as established by evidence

on record, does not suggest that she ever entertained any doubt

about the nature of her relationship with respondent. It is not

understandable that once the prosecutrix had come to know of the

real intent of respondent as alleged by her, why she waited for almost

one month to report the matter to the police? No reasonable

explanation has been given by prosecutrix for this lapse. Thus, the

evidence, in the instant case, falls much short of above noted legal

requirements as well as requisite standard of proof.

18. The medical as well as forensic evidence, relied upon by

the prosecution, has no material bearing on the outcome of the case.

It also does not corroborate the case of prosecution.

19. The findings and conclusions recorded by learned trial

Court, in our considered view, are based on the evidence on record.

The view taken by learned trial court is reasonable and cannot be

said to be illegal or perverse.

.

20. In light of above discussion, we do not find any merit in

the petition, hence the same is rejected and leave to appeal is

disallowed.

21. The petition is accordingly disposed of in the aforesaid terms.

16th August, 2021
      (GR)
                       r          to          (Tarlok Singh Chauhan)
                                                         Judge

                                                       (Satyen Vaidya)
                                                            Judge