Himachal Pradesh High Court

State Of H.P vs Chaman Lal on 22 October, 2024

Author: Tarlok Singh Chauhan

Bench: Tarlok Singh Chauhan, Sushil Kukreja

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. A. No. 207 of 2014 a/w Cr.A. No. 257 of 2014 Reserved on: 15.10.2024 Date of decision: 21.10.2024

Cr.A. No. 207 of 2014 State of H.P. ...Appellant

Versus

Chaman Lal ...Respondent Cr.A. No. 257 of 2020 Renu Bala ...Appellant Versus State of H.P. & Anr. ...Respondents

Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.

The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No.

For the Appellant(s) : Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Tejasvi Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. and Mr. Raj Negi, Dy. A.G. for the appellant in Cr. A. No. 207 of 2014.

Mr. Pawan Gautam, Advocate, for the appellant in Cr. A. No. 257 of 2014.

For the Respondent(s): Mr. I. N. Mehta, Sr. Addl. A.G. with Mr. Tejasvi Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. and Mr.

in RSA No. 257 of 2014.

Mr. Shanti Swaroop, Advocate, for respondent No. 2 in Cr.A. No. 257 of 2014.

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Tarlok Singh Chauhan, ACJ

Since both these appeals arise out of the same

judgment, therefore, they were taken up together for hearing

and are being disposed of by a common judgment.

2. Aggrieved by the acquittal of the respondent-

Chaman Lal under Sections 376 and 506 IPC, the State has filed

Cr.A. No. 207 of 2014 and the prosecutrix has also filed a

separate appeal being Cr. A. No. 257 of 2014.

3. In brief, case of the prosecution is that on

30.11.2012 prosecutrix along with her father moved an

application Ext. PW1/A in Police Station, Haroli in which it was

alleged that she was resident of Ajouli and after passing plus two

examination, she was doing a private job in Nangal. Her father

Mohan Lal had one vehicle in which respondent-Chaman Lal had

been engaged as a driver since November, 2010 and due to

which he used to come to their house.

4. In May, 2012, when her parents had gone to Nangal

for some personal work, she was alone in the house. In the

evening, the respondent came there to park vehicle and finding

her alone in the house, he caught her hand and took her inside

the room. On her objection, the respondent gagged her mouth

and committed forcible rape without her consent. The

respondent had thereafter on several occasions committed rape

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on her and consequently she had conceived. The respondent had

assured to solemnise marriage with her and had advised her not

to disclose the incident to anybody.

5. On 17.07.2012, the respondent took her to Anandpur

Sahib on the pretext to solemnise marriage but he took her to

Sai Hospital at Anandpur Sahib and got her aborted there. The

respondent had assured to solemnise marriage with her after

disclosing the entire facts to his parents.

6. In October, 2012, she had gone to the house of the

respondent on the request of his parents on the eve of 'Shradh'

and when the parents of the respondent in the evening time

went outside for serving food to beggars, the respondent on

finding her alone there again committed forcible sexual

intercourse with her. The respondent used to say that in

November, 2012 he would solemnise marriage with her, due to

which, she remained silent and on 29.10.2012, she asked the

respondent to disclose his desire of marriage with her to his

parents and the respondent on this took her to Anandpur Sahib

Court. The respondent used to deposit installments of vehicle

and for this purpose the cheque book and pass book of her

father used to remain in the vehicle in the custody of the

respondent and her father used to put the signatures on the

cheques without mentioning the amount and the respondent had

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been authorised by her father for filling the amount of

withdrawal in the cheques.

7. On 06.11.2012, the respondent misbehaved with her

father on telephone and refused for marriage and also uttered

filthy words. The respondent had maintained physical relations

with her on the pretext of solemnising marriage.

8. On the application of the prosecutrix, a case under

Sections 376 and 506 of the IPC was registered against the

respondent at Police Station, Haroli vide F.I.R Ext. PW11/A.

Investigation of the case was conducted by Inspector Mohinder

Kumar (PW12).

9. During investigation, I.O filled form 25(39) Ext.

PW7/A of prosecutrix for her medical examination and medical

examination of prosecutrix had been conducted by Dr. Sudhi

Kaushal (PW7) at Regional Hospital, Una and her MLC Ext. PW7/B

had been obtained. Under garments of the prosecutrix along with

vaginal swab and vaginal slide had been taken and preserved

and handed over to the police in sealed parcel by lady doctor. As

per opinion of Doctor, it was not possible to give opinion that

whether rape has been performed or not.

10. At the instance of prosecutrix, spot map of place of

occurrence Ext. PW12/C had been prepared by the I.O. The

prosecutrix had also produced one bed sheet which had been

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packed in a parcel of cloth and parcel had been sealed with seals

'C' and taken in possession vide memo Ext. PW1/B.

11. Statements of witnesses under Section 161 Cr.P.C

were also recorded by the I.O. and during investigation on

01.12.2012, respondent Chaman Lal was arrested. Application

Ext. PW3/A for medical examination of the respondent had been

moved by the I.O. and his medical examination had been

conducted by PW3 Dr. Vinod Dhiman and his MLC Ext. PW3/C

had been obtained. As per opinion of doctor there was nothing to

suggest that respondent was incompetent to perform sexual act.

12. On 2.12.2012, the respondent was produced in the

court and his police remand was obtained. Application Ext.

PW12/D had also been moved to S.P.Una for constituting a board

of doctors and prosecutrix was medically examined by the said

board constituted by C.M.O. and thereafter I.O. had obtained

MLC Ext. PW12/E and also obtained the opinion of the Board.

There was nothing to suggest that any miscarriage had taken

place within last six weeks and board had advised for opinion of

Forensic Expert at RPGMC Tanda and report of (PW6) Dr. Vijay

Arora Ext.PWG/A had been obtained.

13. PW10 ASI Kuldeep Singh partly investigated the case

and had recorded the statement of mother of the prosecutrix and

also procured School certificate of prosecutrix from Govt. High

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School, Ajouli. PW10 on 05.12.12 along with LC Sunita and C.

Jarnail Singh had gone to Sai Hospital, Anandpur Sahib for

obtaining the record of abortion of prosecutrix and had moved

application Ext. PW10/A and no record of abortion was available

and extract of register of Sai Hospital Ext. PW10/B had been

obtained by him. The under garments, vaginal swab, vaginal

slides, one bed sheet packed in sealed parcel and pubic hair etc.

of prosecutrix and of the respondent had been sent to RFSL

Dharamsala.

14. After completion of investigation and receipt of RFSL

report Ext. PW3/C, final report for trial of the respondent as

envisaged under Section 173 Cr.P.C was presented by the police

in the Court of learned CJM, Una on 26.2.13 and the learned CJM,

Una assigned the case to the Court of learned JMIC(I), Una.

15. Copy of challan was supplied to the respondent. On

hearing the parties, charges were framed against the respondent

for the aforesaid offences to which, he pleaded not guilty and

claimed trial.

16. In order to prove its, the prosecution has examined

as many as 12 witnesses.

17. After the closure of the prosecution evidence, the

respondent was examined under Section 313 Cr.P.C. in which he

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denied the case of the prosecution and stated that he had been

falsely implicated and examined four witnesses in his defence.

18. The learned Trial Court after recording evidence and

evaluating the same, acquitted the respondent, constraining the

appellant-State and the prosecutrix to file the instant appeals.

19. It is vehemently argued by Mr. I. N. Mehta, learned

Additional Advocate General for the appellant in Cr. A. No. 207

and 2014 and Mr. Pawan Gautam, learned Advocate, for the

appellant in Cr. A. No. 257 of 2014, that the findings recorded by

the learned trial Court are not only perverse but contrary to the

provisions of law, therefore, deserve to be set aside.

20. On the other hand, Mr. Shanti Swaroop, learned

Advocate, for the respondent-Chaman Lal would vehemently

argue that since the findings recorded by learned trial Court are

based on the correct appreciation of the oral as well as

documentary evidence on record and also based on correct

appreciation of the law, therefore, warrant no interference.

21. We have given a thoughtful consideration to the

submissions made at the Bar and have also gone through the

record of the learned trial Court.

22. It is well settled by the Hon'ble Apex Court in a

catena of decisions that an Appellate Court has full power to

review, re-appreciate and reconsider the evidence upon which

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the order of acquittal is founded. However, Appellate Court must

bear in mind that in case of acquittal there is double

presumption in favour of the accused. Firstly, the presumption of

innocence is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent Court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed

and strengthened by the trial Court. Further, if two reasonable

views are possible on the basis of the evidence on record, the

Appellate Court should not disturb the finding of acquittal

recorded by the trial Court.

23. The scope of power of Appellate Court in case of

appeal against acquittal has been dealt with by the Hon'ble

Apex Court in Muralidhar alias Gidda & another Vs. State of

Karnatka reported in (2014) 5 SCC 730, which reads as

under:

"10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said,

"... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at

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his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

The opinion of the Lord Russell has been followed over the years.

11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed:

"7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

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(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

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24. The Hon'ble Supreme Court in Rajesh Prasad vs.

State of Bihar & another, (2022) 3 SCC 471, observed as

under:

"31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:

31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court.

[Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir]

31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:

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31.2.1. Where the approach or reasoning of the High Court is perverse;

(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393] For example, where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]

(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were "interested" witnesses. [State of U.P. v. Hakim Singh (1980)

(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]

(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime.

[Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]

(e) Where the High Court applied an unrealistic standard of "implicit proof"

rather than that of "proof beyond reasonable doubt" and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]

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(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v.

Champalal Punjaji Shah (1981) 3 SCC 610]

(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish "motive". [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445]

31.2.2.Where acquittal would result is gross miscarriage of justice;

(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]

(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]."

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25. In H.D. Sundara & others vs. State of

Karnataka, (2023) 9 SCC 581, the Hon'ble Supreme Court has

observed that the appellate court cannot overturn acquittal only

on the ground that after re-appreciating evidence, it is of the

view that the guilt of the accused was established beyond a

reasonable doubt. The relevant portion of the above judgment is

as under:

"8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short "CrPC"). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:

8.1. The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;

8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

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8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must first decide whether the trial court's view was a possible view. The appellate court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion. Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken."

26. Thus, the law on the issue can be summarized to the

effect that in exceptional cases where there are compelling

circumstances, and the judgment under appeal is found to be

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perverse, the appellate court can interfere with the order of

acquittal. Further, if two views were possible on the basis of the

evidence on record, the Appellate Court should not disturb the

finding of acquittal recorded by the Trial Court, merely, because

the Appellate Court could have arrived at a different conclusion

than that of the Trial Court.

27. The burden of proof in a criminal trial never shifts

and it is always the burden of the prosecution to prove its case

beyond reasonable doubt on the basis of acceptable evidence. In

fact, it is a settled principle of criminal jurisprudence that the

more serious the offence, the stricter the degree of proof

required, since a higher degree of assurance is required to

convict the accused.

28. It is a settled legal proposition that once the statement

of prosecutrix inspires confidence and is accepted by the court

as such, conviction can be based on the solitary evidence of the

prosecutrix and no corroboration would be required unless there

are compelling reasons which necessitate the court for

corroboration of her statement. There are catena of judgments

passed by the Hon'ble Apex Court wherein it has been held that

only the deposition of the prosecutrix by itself is sufficient to

record conviction for the offence of rape if that testimony

inspires confidence and has complete link of truth.

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29. In Krishan Kumar Malik vs. State (2011) 7 SCC 130,

Hon'ble Supreme Court has held that:

"31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences.

32. Indeed there are several significant variations in material facts in her Section 164 statement, Section161 statement (Cr PC), FIR and deposition in Court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. Record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the Appellant."

30. In Narender Kumar vs. State (NCT of Delhi), 2012

(7) SCC 171, it has been observed as under :

"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix is a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case."

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31. Similarly in the case of State of Rajasthan Vs. Babu

Meena, (2013) 4 SCC 206, it has been held as follows:

"9. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused."...

... ...

32. Keeping in mind the judgments as cited above, the

testimony of prosecutrix has to be consistent and natural in line

with the case of the prosecution and free from infirmities which

inspire confidence in the Court. It cannot be presumed that the

statement of the prosecutrix is always true or without any

embellishment.

33. In the background of the aforesaid legal position,

after considering the case in hand, we are of the opinion that the

statement of the prosecutrix is not at all reliable or in other

words it is wholly unreliable.

34. The prosecutrix appeared in the witness-box as PW-

1. She in her statement deposed that she had studied up to

10+2 and was earlier doing a private job at Nangal. The

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respondent had been engaged as a driver by her father on Indigo

CS Car in November, 2010 and due to this he used to visit their

house and she in turn used to visit his house alongwith her

parents. Sometime she used to go alone to the house of the

respondent. In May, 2012 while she was at her house and her

parents had gone to Nangal, then in the evening, the respondent

came to their house for parking the vehicle and on finding her

alone he caught hold her hand and took her to the room and

gauged her mouth with his one hand and bolted the door from

inside and forcibly committed rape with her. She further stated

that the respondent had assured to marry her and asked her not

to disclose the matter to her family members and in case she

dared to disclose, he would take her life as well as the lives of

her parents. The respondent thereafter on many times

committed rape upon her on finding her alone in the house. She

became pregnant and on 17.07.2012, respondent took her to

Anandpur Sahib on the pretext of taking advise of Advocate

about marriage but instead of taking her to the Advocate, he

took her to Sai Hospital, Anandpur Sahib where they put a drip

and she became unconscious and they conducted the abortion.

In the evening, she gained senses and respondent disclosed her

about the abortion having been conducted and told her not to

disclose this fact to anyone and he will talk to her parents and

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solemnise marriage with her. Respondent kept on lingering the

matter on one pretext or the other and in October, 2012, when

she had gone to the house of the respondent on 'Shradh', the

parents of respondent in the evening had gone to Nangal to give

food to the poor people and the respondent taking advantage of

her loneliness in his house again committed sexual intercourse

with her. On 06.11.2012, the respondent threatened her father

on mobile phone. She accordingly disclosed the entire facts to

her father and thereafter she alongwith her father came to the

office of S.P., Una, who sent them to Police Station, Haroli on

30.11.2012 and on the same day they moved an application Ext.

PW1/A. Thereafter, she was taken to Haroli Hospital on the same

day for medical examination but the lady doctor was not

available there and accordingly she was taken to Regional

Hospital, Una where she was medically examined and MLC Mark

R-I was prepared.

35. PW-10 ASI Kuldeep Singh alongwith police officials

had gone to Sai Hospital, Anandpur Sahib but no record of the

prosecutrix was found there pertaining to the

treatment/abortion.

36. In order to adjudge the veracity of the prosecutrix, it

would be necessary to refer to certain part of the cross-

examination where she has admitted that she had received

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notice on behalf of her father of Advocate Sandeep Kaushal of

Rs. 2,50,000/- and further admitted that she was having love

affairs with respondent after May, 2012. She also admitted that

she had moved an application to the police on 09.11.2012. Her

father had been called to Police Station, Naya Nangal. She

admitted that Duni Chand had given an affidavit of relinquishing

claim of Rs. 2,50,000/- and she in turn had given an affidavit for

withdrawing allegation of rape and further admitted that she had

got engaged one Chaman Lal and she was ready to solemnize

marriage with him. She admitted that stamp for affidavit has

been purchased by her and nothing had been written in the

affidavit about the promise of marriage.

37. Now, adverting to the medical evidence of PW7 Dr.

Sudhi Kaushal, who examined the prosecutrix did not find any

evidence of rape during medical examination of the prosecutrix.

Doctors of the Medical Board had opined that there was nothing

to suggest that any miscarriage has taken place within last six

weeks and there was no injury on the body of the prosecutrix at

the time of medical examination.

38. The prosecutrix has admitted that there was

common entry to the house of her father and her uncle through

the same gate. The prosecutrix has not furnished any

explanation as to why she did not attempt to hit the respondent

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or push him or raise an alarm in case he had forcibly thrust

himself upon the prosecutrix and raped her. Further it has come

on record that a criminal complaint under Section 138 of the

Negotiable Instrument Act was already pending against the

father of the prosecutrix and, as observed above, notice of

complaint had been received by the prosecutrix herself on behalf

of her father in October, 2012.

39. In such circumstances, the learned court below has

rightly observed that instant case appears to have been filed

only in order to pressurize the respondent and his family

members for withdrawal of the aforesaid complaint.

40. In this background, it would be relevant to refer to

the testimony of DW3 ASI Suresh Kumar, who has stated that he

had recorded the statement of the prosecutrix and her father

wherein they had disclosed that they did not take any further

action and pursuant to this compromise between respondent and

prosecutrix had been effected on 15.11.2012.

41. The prosecutrix who was major would have this

Court to believe that she had been repeatedly raped from May,

2012 up to October, 2012 i.e. for six months and would not

choose to complaint. The plea that the respondent had promised

to marry the prosecutrix also does not appear plausible given the

fact that respondent was simply a driver and there is nothing on

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record that the prosecutrix, in fact, intended to marry the

respondent who would have been more than willing to do so.

42. The statement of the prosecutrix is highly

improbable and what otherwise appears is that the version being

put-forth by the prosecutrix is completely unreliable where she

has suppressed the truth and this Court has no difficulty in

concluding that the prosecution has failed to prove its case

beyond reasonable doubts.

43. In view of the aforesaid discussion, we have no doubt

in our mind that the view taken by the learned trial Judge to

acquit the respondent is a plausible and possible view and

therefore warrants no interference.

44. Consequently, the instant appeals sans merit and the

same are accordingly dismissed.

(Tarlok Singh Chauhan) KHEM Acting Chief Justice

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c14

RAJ caec7825ba4158459325bd600d273f58b, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=6aa9db3b3e85e608387fb6f 0fa0bb2ddacd2e1b82f232ca3c0adea331da33 983, CN=KHEM RAJ THAKUR

THAKUR Reason: I am approving this document Location: