Himachal Pradesh High Court
Reserved On : 20.06.2025 vs State Of Himachal Pradesh on 27 June, 2025
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:20114 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No.323 of 2023
Reserved on : 20.06.2025
Decided on : 27.06.2025
_____________________________________________________
Devinder Kumar
…..Appellant
Versus
State of Himachal Pradesh
……Respondent
_________________________________________________________
Coram
Hon’ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting? Yes.
_____________________________________________________
For the appellant: Mr. Ashwani K. Sharma, Senior
Advocate with Ms.Nisha Nalot,
Advocate.
For the respondent: Mr. I.N.Mehta, Senior Additional
Advocate General with Mr.Pawan
Kumar Nadda, Additional Advocate
General and Mr. Ankush Thakur, Deputy
Advocate General.
Sushil Kukreja, Judge
The instant appeal has been preferred by the appellant/
accused/convict (hereinafter referred to as the accused) under Section
374 (2) of the Code of Criminal Procedure (Cr.PC) against the judgment
of conviction and order of sentence dated 30.06.2023, passed by
learned Sessions Judge, Mandi, District Mandi, H.P., in Sessions Trial
No.28/2022/2012, whereby he was convicted under Sections 366 and
376 of the Indian Penal Code (IPC) and was sentenced to undergo
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:20114 )
rigorous imprisonment for five years and to pay a fine of Rs.20,000/-
and in case of default of payment of fine, to undergo rigorous
imprisonment for 10 months for commission of the offence punishable
under Section 366 of IPC and for commission of the offence punishable
under Section 376 of IPC, he was sentenced to rigorous imprisonment
for seven years and to pay a fine of Rs.25,000/- and in case of default
of payment of fine, to undergo rigorous imprisonment for one year.
2. Briefly stated the facts of the case, giving rise to the instant
appeal as per the prosecution story, are that the prosecutrix (name
withheld) was was well acquainted with the accused and he had
promised to marry her. On 10.03.2012, at about 10:00 pm, the accused
made a telepathic call to her and informed that he was waiting for her
on the road. He told her to leave the home and accompany him as he
wanted to marry her. Thereafter, he took her to Kyoli nullah in a Nano
car, which was being driven by one Pendru, who was told by the
accused to pick them up in the morning and in the morning, said
Pendru came and dropped them at Bhulah, from where, the accused
took her to the house of his relatives at Shankar Dehra. Thereafter, he
took her to his home on 12.03.2012, where she came to know that the
accused was already, having two children and then she asked him to
drop her at her home, however, he told her that he would get her
married to his younger brother. The accused committed rape upon her
3 Neutral Citation No. ( 2025:HHC:20114 )
w.e.f. 10.03.2012 to 12.03.2012 on the pretext of marriage. Thereafter,
the prosecutrix any how reached her home on 13.03.2012 and narrated
the entire incident to her parents and then on 19.03.2012, she
alongwith her parents and relatives went to the police and lodged FIR
against the accused. During the course of investigation, police prepared
the site plan of the place from where, the prosecutrix was taken. Police
took into possession the mobile phone as well as SIM card of the
prosecutrix. The police got conducted the medical examination of the
prosecutrix and the doctor did not find any marks of injury on her body.
The accused was also medically examined by the police. The police
also recorded the statements of the witnesses and had taken into
possession certain documents.
3. On the completion of the investigation and receipt of the
SFSL report, the charge-sheet was prepared and presented before the
trial Court.
4. The learned trial Court, vide order dated 30.08.2013,
framed charges against the accused under Sections 366 & 376 of IPC,
to which, he did not plead guilty and claimed trial.
5. In order to prove its case, the prosecution examined as
many as 18 witnesses and thereafter statement of the accused was
recorded under Section 313 Cr.P.C., wherein he denied all set of
incriminating evidence led by the prosecution against him, besides
4 Neutral Citation No. ( 2025:HHC:20114 )
pleaded to be innocent and being falsely implicated. However, the
accused did not examine any witness in his defence.
6. On the basis of evidence led on record by the prosecution,
the learned trial Court convicted the accused, vide the impugned
judgment and sentenced him as per the description given hereinabove.
7. Being aggrieved and dissatisfied with the judgment of
conviction and order of sentence passed by the learned trial Court, the
appellant/accused approached this Court by way of the instant appeal,
praying therein for his acquittal, after setting aside the aforesaid
judgment of conviction and order of sentence.
8. Learned counsel for the appellant contended that the trial
Court has failed to appreciate the law as well as the facts and its
findings are based upon surmises and conjectures. He further
contended that the impugned judgment is liable to be quashed and set
aside on the sole ground that there was an inordinate and unexplained
delay in reporting the matter to the police and lodging the FIR. He also
contended that the prosecutrix accompanied and stayed with the
respondent at her own at different places, therefore, the question of
taking her from the lawful guardianship does not arise. He further
contended that no injuries were found on the body of the prosecutrix at
the time of her medical examination and it was a case of consensual
relationship between the accused and the prosecutrix. Hence, he
5 Neutral Citation No. ( 2025:HHC:20114 )
submitted that the impugned judgment of conviction and order of
sentence be quashed and set-aside and the accused be acquitted.
9. Conversely, the learned Additional Advocate General
contended that the learned trial Court has rightly and correctly
appreciated the evidence in its true perspective. He further contended
that there is more than sufficient material on record which clearly shows
that the accused had committed the crime. The evidence, which has
come on record, is enough to convict the accused, therefore, he
submitted that the impugned judgment of conviction and order of
sentence need no interference and the appeal, which is devoid of
merits deserves to be dismissed.
10. I have heard the learned counsel for the appellant and the
learned Additional Advocate General for the respondent/State and have
also gone through the record carefully.
11. To substantiate the charges framed against the
respondent-accused and to bring home his guilt, the prosecution
examined as many as 18 witnesses. However, the case of the
prosecution mainly rests upon the statements of PW-1 (prosecutrix)
PW-2 father of the prosecutrix, PW-3 mother of the prosecutrix and
PW-8 Dr. Sonali Mahajan.
12. So far as the age of the prosecutrix is concerned, in her
MLC Ext. PW8/B, her age has been mentioned as 20 years and the
6 Neutral Citation No. ( 2025:HHC:20114 )
prosecutrix, while appearing in the witness-box as PW-1 on 20.07.2018,
stated her age to be 26 years, which means that in the year, 2012, she
was of 20 years of age. The prosecution has failed to produce any
documentary evidence on record to prove the age of the prosecutrix.
Even no radio-logical examination of the prosecutrix was got
conducted by the prosecution in order to prove her age. Therefore, in
view of the MLC Ext.PW8/B as well as the deposition of the prosecutrix
before the Court, it can be presumed that at the time of the alleged
incident, i.e. 10.03.2012, the age of the prosecutrix was 20 years and
she was major.
13. Rape or an attempt to rape is a crime not against an
individual but a crime which destroys the basic equilibrium of the social
atmosphere. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297,
Hon’ble Apex Court has held:-
“49. Rape or an attempt to rape is a crime not against an
individual but a crime which destroys the basic equilibrium of the
social atmosphere. The consequential death is more
horrendous. It is to be kept in mind that an offence against the
body of a woman lowers her dignity and mars her reputation. It
is said that one’s physical frame is his or her temple. No one has
any right of encroachment. An attempt for the momentary
pleasure of the accused has caused the death of a child and
had a devastating effect on her family and, in the ultimate
eventuate, on the collective at large. When a family suffers in
such a manner, the society as a whole is compelled to suffer as
it creates an incurable dent in the fabric of the social milieu. The
cry of the collective has to be answered and respected and that
is what exactly the High Court has done by converting the
decision of acquittal to that of conviction and imposed the
sentence as per law.”
14. It is a settled principle of law that conviction can be based
7 Neutral Citation No. ( 2025:HHC:20114 )
on the sole testimony of the victim of sexual assault without
corroboration from any other evidence. The prosecutrix complaining of
having been a victim of the offence of rape is not accomplice of the
crime and there is, no rule of law that her testimony cannot be acted
without corroboration on material particulars. Her testimony has to be
appreciated on the principles of probabilities just as the testimony of
any other witness and if the Court finds it difficult to accept the version
of the prosecutrix on its face value, it may search for evidence direct or
circumstantial which would lend assurance to her testimony.
15. The Hon’ble Supreme Court has observed in a catena of
decisions that the Court should examine the broader probabilities of a
case and not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which are not of a
fatal nature to throw out an otherwise reliable prosecution case. If the
statement of the prosecutrix is of sterling quality and inspires
confidence, then corroboration from other evidence need not be sought,
but where the statement of the prosecutrix is shaky and does not
inspire confidence then corroboration should be sought from other
evidence collected during investigation.
16. In State of Himachal Pradesh Vs. Gian Chand, (2001) 6
SCC 71, it was held that that conviction for an offence of rape can be
based on the sole testimony of the prosecutrix corroborated by medical
8 Neutral Citation No. ( 2025:HHC:20114 )
evidence and other circumstances such as the report of chemical
examination etc. if the same is found to be natural, trustworthy and
worth being relied on.
17. In the case of Vijay @ Chinee Vs. State of Madhya
Pradesh, (2010) 8 SCC 191, it was held that the statement of the
prosecutrix, if found to be worthy of credence and reliable, requires no
corroboration. The Court may convict the accused on the sole
testimony of the prosecutrix. Paras 9 to 14 of the judgment are
reproduced as under:-
“9.In State of Maharashtra v. Chandraprakash Kewalchand Jain AIR
1990 SC 658, this Court held that a woman, who is the victim of sexual
assault, is not an accomplice to the crime but is a victim of another
person’s lust and, therefore, her evidence need not be tested with the
same amount of suspicion as that of an accomplice. The Court
observed as under:-
“16.A prosecutrix of a sex-offence cannot be put on par
with an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118
and her evidence must receive the same weight as is
attached to an injured in cases of physical violence. The
same degree of care and caution must attach in the
evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is
that the Court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If
the court keeps this in mind and feels satisfied that it can
act on the evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act similar to
illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to
place implicit reliance on the testimony of the prosecutrix it
may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of an
accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
necessarily depend on the facts and circumstances of each
9 Neutral Citation No. ( 2025:HHC:20114 )case. But if a prosecutrix is an adult and of full
understanding the court is entitled to base a conviction on
her evidence unless the same is shown to be infirm and
not trustworthy. If the totality of the circumstances
appearing on the record of the case disclose that the
prosecutrix does not have a strong motive to falsely involve
the person charged, the court should ordinarily have no
hesitation in accepting her evidence.
10. In State of U.P. v. Pappu @ Yunus and Anr. AIR 2005 SC 1248,
this Court held that even in a case where it is shown that the girl is a girl
of easy virtue or a girl habituated to sexual intercourse, it may not be a
ground to absolve the accused from the charge of rape. It has to be
established that there was consent by her for that particular occasion.
Absence of injury on the prosecutrix may not be a factor that leads the
court to absolve the accused. This Court further held that there can be
conviction on the sole testimony of the prosecutrix and in case, the
court is not satisfied with the version of the prosecutrix, it can seek
other evidence, direct or circumstantial, by which it may get assurance
of her testimony. The Court held as under:-
12. It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not an
accomplice after the crime. There is no rule of law that her
testimony cannot be acted without corroboration in
material particulars. She stands at a higher pedestal than
an injured witness. In the latter case, there is injury on the
physical form, while in the former it is both physical as well
as psychological and emotional. However, if the court of
facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for evidence,
direct or circumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would do.
11. In State of Punjab v. Gurmit Singh and Ors.: AIR 1996 SC 1393,
this Court held that in cases involving sexual harassment, molestation
etc. the court is duty bound to deal with such cases with utmost
sensitivity. Minor contradictions or insignificant discrepancies in the
statement of a prosecutrix should not be a ground for throwing out an
otherwise reliable prosecution case. Evidence of the victim of sexual
assault is enough for conviction and it does not require any
corroboration unless there are compelling reasons for seeking
corroboration. The court may look for some assurances of her
statement to satisfy judicial conscience. The statement of the
prosecutrix is more reliable than that of an injured witness as she is not
an accomplice. The Court further held that the delay in filing FIR for
sexual offence may not be even properly explained, but if found natural,
the accused cannot be given any benefit thereof. The Court observed
as under:
“8…The court overlooked the situation in which a poor
helpless minor girl had found herself in the company of
three desperate young men who were threatening her and
preventing her from raising any alarm. Again, if the
10 Neutral Citation No. ( 2025:HHC:20114 )investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the
driver or the car, how can that become a ground to
discredit the testimony of the prosecutrix? The prosecutrix
had no control over the investigating agency and the
negligence of an investigating officer could not affect the
credibility of the statement of the prosecutrix…. The courts
must, while evaluating evidence remain alive to the fact
that in a case of rape, no self- respecting woman would
come forward in a court just to make a humiliating
statement against her honour such as is involved in the
commission of rape on her. In cases involving sexual
molestation, supposed considerations which have no
material effect on the veracity of the prosecution case or
even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of
fatal nature, be allowed to throw out an otherwise reliable
prosecution case…. Seeking corroboration of her
statement before replying upon the same as a rule, in
such cases, amounts to adding insult to injury….
Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law but
a guidance of prudence under given circumstances…
** ** ** **
21….The courts should examine the broader probabilities
of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be
alive to its responsibility and be sensitive while dealing with
cases involving sexual molestations.
12. In State of Orissa v. Thakara Besra and Anr. AIR 2002 SC 1963, this
Court held that rape is not mere a physical assault, rather it often distracts
the whole personality of the victim. The rapist degrades the very soul of the
helpless female and, therefore, the testimony of the prosecutrix must be
appreciated in the background of the entire case and in such cases, non-
examination even of other witnesses may not be a serious infirmity in the
prosecution case, particularly where the witnesses had not seen the
commission of the offence.
13. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622,
this Court held that there is no legal compulsion to look for any other
evidence to corroborate the evidence of the prosecutrix before recording
an order of conviction. Evidence has to be weighed and not counted.
Conviction can be recorded on the sole testimony of the prosecutrix, if her
11 Neutral Citation No. ( 2025:HHC:20114 )evidence inspires confidence and there is absence of circumstances which
militate against her veracity. A similar view has been reiterated by this
Court in Wahid Khan v. State of M.P. placing reliance on an earlier
judgment in Rameshswar v. State of Rajasthan.
14. Thus, the law that emerges on the issue is to the effect that the
statement of the prosecutrix, if found to be worthy of credence and reliable,
requires no corroboration. The court may convict the accused on the sole
testimony of the prosecutrix”
18. There cannot be any dispute with the proposition of law
laid down by the Hon’ble Apex Court in catena of pronouncements that
in case of rape, evidence of prosecutrix must be given predominant
consideration, and finding of guilt in case of rape can be based upon
the uncorroborated evidence of the prosecutrix, but apart from above,
Hon’ble Apex court has also held that if the story put forth by the
prosecutrix is improbable and belies logic, placing sole reliance upon
her statement would be violence to the very principles which govern the
appreciation of evidence in a criminal matter. In this regard, reliance is
placed on judgment rendered by the Hon’ble Apex Court in
Tameezduddin alias Tammu Vs. State of NCT of Delhi, (2009) 15
SCC 566, wherein it has been held as under:-
“9.It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story is
improbable and belies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a
criminal matter. We are of the opinion that story is indeed
improbable.”
19. Now, reverting back to the facts of the case on hand. The
moot point involved for consideration in this appeal is whether evidence
12 Neutral Citation No. ( 2025:HHC:20114 )
adduced by the prosecution is credible and worthy of credence. The
prosecutrix, who appeared in the witness box as PW-1, deposed that
she was a teacher by profession and in the year, 2012, she was
studying in B.A. 1st year. She was acquainted with accused Devender
Kumar for many days, who told her that he was owner of Tara Murari
Bus and promised her to marry with her. On 10.03.2012 at about 10.00
p.m., he had called her on telephone and asked her to come out side
for the purpose of marrying with her. After that, she came out of her
house and the accused met her on the road outside side her home,
who took her in A white coloured Nano car bearing registration No. HP-
32-B 1278 to Kyoli Nallah, which car was being driven by some person
namely Pendru and said Pendru had dropped them at Kyoli Nallah and
then left from there along with car. Accused asked Pendru to come next
day so that they could be dropped at Bhulah. On that night on
10.03.2012, they stayed at the house of one Leela Devi, where the
accused had forcibly made physical relations once with her on the
pretext and promise of marrying her. On 11.03.2012 at about 11.00 am,
they went in the same Nano car driven by Pendru to place Bhulah, from
where, they went to a place Shankar Dehra by feet and stayed in the
house of relatives of accused. On 12.03.2012, the accused had taken
her to his home at about 11.00 am and there she came to know that the
accused was already married and was having two children. Then she
13 Neutral Citation No. ( 2025:HHC:20114 )
asked him to drop her at her home, but he promised her that he would
get her married with his brother. Thereafter, she on her own had fled
from the house of accused on 13.03.2012 and reached her home. She
narrated the whole incident to her parents. After that on 19.03.2012,
she alongwith her parents and some relatives went to police station and
had registered FIR against the accused.
20. PW-2, who is the father of the victim, deposed that on
10.03.2012 after taking dinner, the prosecutrix had gone to her room at
about 10.00 p.m and after some time, his wife had noticed that the
prosecutrix was not in her room. Thereafter, they had searched her at
home and around the village, but she was not found anywhere. On next
day, he came to know that accused Devender Kumar, who was the
owner of Tara Murari Bus, had abducted his daughter on the pretext of
marriage. They had tried to search the prosecutrix, but she was not
found anywhere. On 13.03.2012, the prosecutrix had returned to home
and told his wife that the accused had taken her to Kyoli Nallah to his
sister’s quarter in a white colored Nano car, which was driven by one
Pandru and had raped her against her wishes at Kyoli Nallah. She told
that from there, the accused had taken her to Shankar Dehra and from
there to his home at Rohara. On 19.03.2012, he alongwith the
prosecutrix and his wife had gone to the police station and got
registered the FIR.
14 Neutral Citation No. ( 2025:HHC:20114 )
21. PW-3, who is the mother of the prosecutrix, stated that on
10.03.2012, she along with her husband and the children were at their
home and at about 10:00 pm they went to their rooms for taking sleep.
They used to sleep in the first floor of their house and the prosecutrix
used to sleep in the ground floor of their house. She along with her
husband was in the kitchen, thereafter, she went to the room of the
prosecutrix, who was not in her room. She alongwith her husband
searched for her in the nearby area, but they could not found her. Next
day, they came to know that the prosecutrix was taken by accused
Devender Kumar. On 13.03.2012, the prosecutrix returned back to their
home and disclosed that she was called telephonically by Devender
Kumar in the night of 10.03.2012 and told her that he wanted to
solemnize marriage with her. On that pretext, he called her to come out
of home and the prosecutrix went out of home with him. She also
disclosed that the accused took her in a Nano car driven by one Pendru
to Keoli-nala in the quarter of accused’s sister namely Leela Devi,
where the accused committed sexual intercourse with her against her
wish, forcibly. Next day he took her to Shanker-Dehra and on third day,
he took her to his home in village Rada, where she came to know that
the accused was already married and he was having two sons. The
prosecutrix also disclosed that the accused told her that he would
solemnize her marriage with his younger brother.
15 Neutral Citation No. ( 2025:HHC:20114 )
22. Thus, perusal of the entire evidence on record would reveal
that the prosecutrix was acquainted with the accused for the last more
than six months and she herself stealthily went out with the accused at
10 PM on the night of 10.03.2012 after the accused had called her on
her mobile phone. The accused met her on the road outside her house
and had taken her in a Nano car, which was being driven by one
Pendru, who dropped them at Kyoli nallah. In her cross-examination,
the prosecutrix admitted that there were so many houses situated
around her parental house. However she had not raised any protest
while accompanying the accused. As per her deposition, on
10.03.2012, both of them stayed at the house of one Leela Devi at Kyoli
nullah and she also admitted that at Kyoli nallah, there were other
houses situated adjoining to the house where both of them had stayed
on 10.03.2012 and on that night, the accused had made forcible
physical relations with her on the pretext and promise of marriage.
However, she had neither lodged any complaint to anyone nor raised
any alarm when the accused had allegedly made forcible physical
relations with her. It has also come in evidence that they went in the
same Nano Car being driven by Pendru to place Bhulah, on 11.03.2012
at about 11.00 a.m. from where, they went to a place Shankar Dehra by
feet and stayed in the house of relatives of accused on 12.03.2012 at
Shankar Dehra. The prosecutrix had failed to explain as to why she
16 Neutral Citation No. ( 2025:HHC:20114 )
accompanied the accused on 11.03.2012 despite the fact the he had
allegedly committed forcible sexual intercourse with her on 10.03.2012.
In cross-examination, the prosecutrix stated that she had conversation
at Shankar Dehra with the relatives of the accused throughout the day
and they remained together there in the night of 11.03.2012 in the
room. However she did not disclose to the relatives of the accused that
the accused had committed forcible sexual intercourse with her. On
third day ,i.e. on 12.03.2012, the accused took her to his home in
village Rada, but there also, the prosecutrix had not disclosed to
anyone that the accused had committed forcible sexual intercourse with
her. It is highly improbable that with an intent to marry the prosecutrix,
the accused would take her to his own house where he was staying
with his wife and two children. It has also come in the evidence that the
prosecutrix was having mobile phone with her w.e.f. 10.03.2012 to
13.03.2012. However, surprisingly she had not contacted her parents
when the accused had allegedly committed forcible sexual intercourse
with her. In her cross-examination, she feigned ignorance as to for how
many times, she contacted with her parents telephonically in between
10.03.2012 to 13.03.2012. She also admitted in cross-examination that
for the last 5-6 months, she was in contact with the accused and she
was even at conversation with him after registration of the case through
her mobile phone. She had voluntarily travelled to various places and
17 Neutral Citation No. ( 2025:HHC:20114 )
stayed with the accused w.e.f.10.03.2012 to 13.03.2012 but never
complained to anyone about the alleged rape which indicates towards
her consenting conduct.
23. There is a clear distinction between rape and consensual sex.
The court, in such cases, must very carefully examine whether the
accused had actually wanted to marry the prosecutrix or had mala fide
motives and had made a false promise to this effect only to satisfy his
lust, as the latter falls within the ambit of cheating or deception. There is
also a distinction between mere breach of a promise and not fulfilling a
false promise. If the accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in sexual acts, such an
act would not amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on account of her love
and passion for the accused and not solely on account of the
misconception created by accused. The acknowledged consensual
physical relationship between the parties would not constitute an
offence under Section 376, IPC.
24. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
the Court has drawn a distinction between rape and consensual sex.
This is a case of a prosecutrix aged 19 years at the time of the incident.
She had an inclination towards the accused. The accused had been
giving her assurances of the fact that he would get married to her. The
18 Neutral Citation No. ( 2025:HHC:20114 )
prosecutrix, therefore, left her home voluntarily of her own free will
accompanied the accused to get married to him and thereafter
developed physical relationship with him. The Hon’ble Supreme Court
held that it was not possible to apprehend the circumstances in which a
charge of deceit/rape can be levelled against the accused. Relevant
portion of the judgment reads as under:-
“17.4. The physical relationship between the parties
had clearly developed with the consent of the prosecutrix, as
there was neither a case of any resistance, nor had she raised
any complaint anywhere at any time despite the fact that she
had been living with the appellant for several days, and had
travelled with him from one place to another.
17.5. Even after leaving the hostel of Kurukshetra
University, she agreed and proceeded to go with the appellant
to Ambala, to get married to him there.
—— —— —– —– —-
26. To conclude, the prosecutrix had left her home
voluntarily, of her own free will to get married to the appellant.
She was 19 years of age at the relevant time and was, hence,
capable of understanding the complications and issues
surrounding her marriage to the appellant. According to the
version of events provided by her, the prosecutrix had called
the appellant on a number given to her by him, to ask him why
he had not met her at the place that had been pre- decided by
them. She also waited for him for a long time, and when he
finally arrived she went with him to the Karna lake where they
indulged in sexual intercourse. She did not raise any objection
at this stage and made no complaints to any one. Thereafter,
she also went to Kurukshetra with the appellant, where she
lived with his relatives. Here to, the prosecutrix voluntarily
became intimate with the appellant. She then, for some reason,
went to live in the hostel at Kurukshetra University illegally, and
once again came into contact with the appellant at the Birla
Mandir. Thereafter, she even proceeded with the appellant to
the old bus-stand in Kurukshetra, to leave for Ambala so that
the two of them could get married in court at Ambala. However,
here they were apprehended by the police.
27. If the prosecutrix was in fact going to Ambala to marry the
appellant, as stands fully established from the evidence on
19 Neutral Citation No. ( 2025:HHC:20114 )
record, we fail to understand on what basis the allegation of
“false promise of marriage” has been raised by the prosecutrix.
We also fail to comprehend the circumstances in which a
charge of deceit/rape can be leveled against the appellant, in
light of the aforementioned fact situation.”
25. In the instant case, from a close reading of the statement
given by the prosecutrix, it is easily discernible that the accused had not
committed forcible sexual intercourse with her. The only point urged
on the side of the prosecution is that since the accused had given her
promise to marry, she had given her consent for sexual intercourse due
to misconception. Admittedly, the prosecutrix is a teacher by profession
and was major at the relevant time and if she gave consent even on
any of the assumptions and had sexual intercourse with the accused,
she will under all circumstances and in all respect be considered to be
a consenting party. She had willfully submitted herself to the appellant
to have sexual intercourse with her and such consent given by the
prosecutrix to have sexual intercourse with the accused, cannot be said
to be given under a “misconception of fact”. It is not a case of a passive
submission in the face of any psychological pressure exerted and there
was a tacit consent and the tacit consent given by her was not the
result of any misconception created in her mind.
26. So far as the medical evidence is concerned, it does not
support the case of prosecution. PW-8 Dr.Sonali Mahajan had
conducted medical examination of the prosecutrix and issued MLC
20 Neutral Citation No. ( 2025:HHC:20114 )
Ext.PW8/A wherein she opined that the person examined has been
exposed to sexual intercourse. The relevant portion of her deposition
before the Court reads as under:-
“……..During the general examination, the patient was
conscious, oriented to time, place and person. On her
physical examination average built, pulse 80 per minute,
BP 100/70 mm, height 5.3 inch and weight was 50 kg.
Breast were well developed, axillary hair were present,
pubic hair was shaved. The person had changed the
clothes and taken bath. There was no mark of injury seen
on body part.
On local examination, labia majora, labia minora
was well developed. Hymen had multiple tears at 5
O’clock, 7 O’clock and 9 O’clock position which were
healed. There was no tenderness, bleeding or swelling.
On per vaginum examination admitted two fingers with
ease.
…………… ———— ———-
In my opinion, the person examined has been
exposed to sexual intercourse. Time elapsed cannot be
commented upon.”
27. The result of SFSL report Ext. PW8/C is reproduced as
under:-
“(1) Blood and semen was not found on the exhibit-1
(underwear of the prosecutrix), exhibit-2 (vaginal slides
of prosecutrix), exhibit-5 (pubic hair of Devinder Singh),
exhibit-8a (bed sheet) and exhibit-8b (pillow cover).
(2) Blood was not found on the exhibit-3 (vaginal swab,
prosecutrix), exhibit-4 (pants, Devinder Singh) and
exhibit-7 (slacks, Devinder Singh, but human semen
was found on these exhibits.
3. Human semen was found on the exhibit-6 (semen
sample, Devinder Singh).”
28. Although, the Medical Officer (PW-8) deposed that as per
her opinion, the prosecutrix had been exposed to sexual intercourse.
However, her such deposition does not connect the accused with the
21 Neutral Citation No. ( 2025:HHC:20114 )
commission of the offence of rape upon the prosecutrix. The perusal of
deposition of the Medical Officer (PW-8) shows that there were no
marks of injury seen on the body of the prosecutrix and there was no
tenderness, bleeding or swelling on local examination of labia majora
and labia minora. The medical evidence adduced on record by the
prosecution otherwise nowhere indicates towards sexual intercourse
committed by the accused. The Medical Officer had deposed that she
had taken vaginal swab and vaginal slides of the prosecutrix and
handed them over to police for chemical analysis. However, as per
SFSL report Ext. PW8/C, no blood and semen was found on the
underwear and vaginal slides of the prosecutrix as well as on the pubic
hair of accused, bed-sheet and pillow cover. Similarly, blood was not
found on the vaginal swab of the prosecutrix, pants and slacks of the
accused, but human semen was found on these exhibits. However,
from the perusal of the aforesaid report Ext.PW8/C, it cannot be said
that the accused had committed rape upon the victim as the
prosecution has failed to obtain any report from the Biology and
Serology Division of FSL to the effect that any DNA profile obtained
from the vaginal swab and vaginal slides matched with the DNA profile
obtained from the blood sample of the accused. In fact no DNA test was
conducted in order to match the human semen detected on the vaginal
swabs of the prosecutrix with the blood sample of the accused. The
22 Neutral Citation No. ( 2025:HHC:20114 )
Medical Officer (PW-8) also admitted in her cross-examination that she
had not mentioned the duration of alleged sexual intercourse in the
report Ext.PW8/B. Thus the medical evidence nowhere connects the
accused with the commission of offence of rape upon the prosecutrix.
29. There is another glaring aspect of the case as the incident
had taken place on 10.03.2012 but the matter was reported to the
police on 19.03.2012.There is no satisfactory explanation for the delay
in lodging the FIR. PW-1 deposed before the Court that she narrated
the whole incident to her parents on 13.03.2012 and after that on
19.03.2012, she alongwith her parents and some relatives went to the
police station and registered FIR against the accused. It is quite
strange that the prosecutrix had gone missing on 10.03.2012 and her
parents had not even cared to lodge a missing report. There is no
explanation for either the failure to lodge a missing complaint or the
delay in filing an FIR, which opens the possibility of introduction of a
coloured version, exaggerated account or concocted story. According to
the prosecution case, the prosecutrix had gone missing on 10.03.2012.
If the prosecutrix had gone missing on the aforesaid date, her parents
should have gone to the police station to lodge a missing report which
could have prompted the Investigating Officer to act accordingly. It is
worthwhile to mention that in rape cases the delay in lodging FIR by the
prosecutrix is not unusual on account of trauma and agony suffered as
23 Neutral Citation No. ( 2025:HHC:20114 )
also the fear of social stigma. However, what prevented the parents of
the prosecutrix to lodge a missing report remains unanswered. In view
of the settled proposition of law as well as on the above conduct of the
parents, no reasonable and plausible explanation has been tendered as
to why the FIR was lodged belatedly after knowing that the prosecutrix
was missing since 10.03.2012 and after knowing that she was
subjected to rape by the accused on the same night. Therefore, the
delay in lodging FIR creates a suspicion about the version of the
prosecution.
30. Thus, the learned trial Court has erred in ordering the
conviction of the appellant because the prosecution has failed to prove
its case against the appellant beyond the shadow of reasonable doubt..
It is a settled preposition of law that the prosecution is required to
establish its case against an accused beyond the shadow of reasonable
doubt by leading cogent and convincing evidence. Whenever, a doubt
arises in the persecution story, benefit of the same has to be extended
to the accused.
31. There is no doubt that rape causes great distress and
humiliation to the victim of rape but at the same time false allegation of
committing a rape also causes humiliation and damage to the accused.
An accused has also rights which are to be protected and the possibility
of false implication has to be ruled out. The Supreme Court in Radhu
24 Neutral Citation No. ( 2025:HHC:20114 )
vs. State of Madhya Pradesh, reported in 2007 Cri.L.J. 4704 had in
this context noted as follows:-
“5…..The courts should, at the same time, bear in mind
that false charges of rape are not uncommon. There have also
been rare instances where a person has persuaded a gullible or
obedient daughter to make a false charge of a rape either to
take revenge or extort money or to get rid of financial liability.
Whether there was rape or not would depend ultimately on the
facts and circumstances of each case.”
32. In Abbas Ahmed Choudhary Versus State of Assam,
(2010) 12 SCC 115, the Hon’ble Supreme Court has held in para-11
that:-
“11.We are conscious of the fact that in a matter of rape,
the statement of the prosecutrix must be given primary
consideration, but, at the same time, the broad principle that the
prosecution has to prove its case beyond reasonable doubt
applies equally to a case of rape and there can be no
presumption that a prosecutrix would always tell the entire story
truthfully.”
33. Keeping in view the overall facts and circumstances of the
case, this Court is of the opinion that the prosecution has failed to
establish its case against the appellant/accused beyond reasonable
doubt. The learned trial Court fell in error in ordering the conviction of
the appellant and the reasons given by the trial Court in its
judgment/order for convicting him are perverse and not at all
sustainable. Hence, the instant appeal is allowed and the impugned
judgment of conviction and order of sentence dated 30.06.2023, passed
by learned Sessions Judge, Mandi, District Mandi, HP, in Sessions Trial
No.28/2022/2012, are set aside. The appellant, who has already served
the sentence of more than two years, is acquitted of the charges framed
25 Neutral Citation No. ( 2025:HHC:20114 )
against him.
34. The appellant be set at liberty forthwith, if not required in
any other case. Fine amount, if deposited, be refunded to the appellant.
Release warrant be prepared forthwith.
35. In view of the provisions of Section 481 of Bhartiya Nagarik
Suraksha Sanhita, 2023, the appellant is directed to furnish personal
bond in the sum of Rs.50,000/- with one surety in the like amount
before the Registrar (Judicial) of this Court, which shall be effective for
a period of six months, with stipulation that in the event of Special
Leave Petition being filed against this judgment or on grant of leave, the
appellant aforesaid, on receipt of notice thereof, shall appear before the
Hon’ble Supreme Court.
36. The appeal is accordingly disposed of, so also the pending
miscellaneous application(s), if any.
( Sushil Kukreja )
Judge
June 27, 2025
(V.Himalvi)
Digitally signed by VIRENDER BAHADUR
VIRENDER
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH SHIMLA, Phone=
3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa73899
0a0ea7ba, PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=
fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb64
BAHADUR
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Reason: I am approving this document
Location:
Date: 2025.06.27 15:06:38+05’30’
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