Himachal Pradesh High Court
State Of Himachal Pradesh vs Hitender Kumar And Another on 24 February, 2021
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 1680 of 2020
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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.
Whether reporters of the local papers may be allowed to see the judgment?
...2...
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
...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
...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
...5...
Theog, that nothing had happened to her and rather, she had
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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.
