Himachal Pradesh High Court
Reserved On: 24.03.2025 vs Ashok Kumar & Others on 1 April, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:8614-DB )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 275 of 2014
Reserved on: 24.03.2025
Decided on: 01.04.2025
____________________________________________________
State of Himachal Pradesh …..Appellant.
Versus
Ashok Kumar & others ……Respondents.
_____________________________________________________
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting? No.
_____________________________________________________
For the appellant: Mr. Yashwardhan Chauhan, Senior
Additional Advocate General, with Mr.
Ramakant Sharma, Ms. Sharmila
Patial, Mr. Sushant Keprate,
Additional Advocates General and Mr.
Raj Negi, Deputy Advocate General.
For the respondents: Mr. N.K. Thakur, Senior Advocate,
with Mr. Karan Veer Singh, Advocate.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the
appellant/State under Section 378 of the Code of Criminal
Procedure against the impugned judgment dated 31.03.2014,
passed by learned Additional Sessions Judge, Chamba, District
Chamba, H.P., whereby the accused (respondent herein) was
acquitted for the offences punishable under Sections 366, 376,
120B and 506 read with Section 34 of the Indian Penal Code (for
short “IPC“).
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:8614-DB )
2. The facts giving rise to the present appeal, as per the
prosecution story, can be summarized as under:
2(a). The prosecutrix (name withheld) had only passed 3rd
standard and when she was three months old her mother had
expired. The mother of the prosecutrix had expired and her father
was admitted in a hospital, as both of his legs got fractured. The
prosecutrix was brought up by her maternal grand-mother and her
maternal grand-father had also expired. The grand-mother of the
prosecutrix could not bear the expenses of her studies, therefore,
she could not continue her studies, however, she used to reside
with her maternal grand-mother.
2(b). It has come in the prosecution story that during the
year 2009 one Bimla (wife of accused Vias Dev) visited the house
of the maternal grand-mother of the prosecutrix and advised that
the government had opened a stitching centre in her house and
the prosecutrix might learn stitching. The prosecutrix was admitted
in the stitching centre. It has further come in the prosecution story
that Bimla’s daughter was married to the brother of accused Ashok
Kumar, who also used to visit the stitching centre. Bimla and
accused Vias Dev used to induce the prosecutrix to do the job of
maid in the house of accused Ashok Kumar. When the prosecutrix
used to attend the stitching centre, accused Thakari Devi alongwith
3 Neutral Citation No. ( 2025:HHC:8614-DB )
her son accused Ashok Kumar came to the house of accused Vias
Dev for taking the prosecutrix to her house, as maid. The
prosecutrix accompanied accused Thakri and Ashok Kumar to their
house to work as a maid. On the subsequent day, when she was
asleep in a separate room, accused came there around 9/10 p.m.
and committed forcible sexual intercourse with her against her
consent. The prosecutrix raised hue and cry, but no one paid any
heed. The prosecutrix narrated the incident to the parents of
accused Ashok Kumar, who only consoled her, and accused
Thakari and Jodha Ram told her that lodging of report with the
police would be of no use. The parents of accused Ashok Kumar
induced the prosecutrix by saying that she would be accepted as
their daughter-in-law and soon marriage would be solemnized.
Being swayed by the accused persons and considering her own
circumstances, the prosecutrix started living in the house of
Thakari Devi. Thus, the prosecutrix stayed there under the belief
that she would be treated as the wife of accused Ashok Kumar
who too continued to have sexual intercourse with her,
representing himself as the husband of the prosecutrix.
2(c). The prosecutrix was made to believe by the accused
that soon their marriage would be entered in the panchayat record
and she was also allured by him that whenever she would
4 Neutral Citation No. ( 2025:HHC:8614-DB )
conceive and give birth to a child, good education would be given
to the child. Later on, the prosecutrix conceived and accused
Ashok Kumar left for Baddi for the job. Whenever, accused Ashok
Kumar used to visit his house, he used to have sexual intercourse
with the prosecutrix. Thereafter, accused Ashok Kumar started
beating her and demanding dowry and Thakari Devi used to abuse
her on the pretext that she had not brought enough dowry.
Thereafter, a girl child was born and instead of accepting the child,
the parents of accused Ashok Kumar started maltreating the
prosecutrix and she was asked to leave their house with the new
born child. The maternal grand-mother of the prosecutrix had also
expired, therefore, with a new born child she had no other option,
but to continue to live there. However, ultimately, due to the
changed behavior of the parents of accused Ashok Kumar, the
prosecutrix came to the house of her maternal grand-mother
where one Devli also joined her. The parents of accused Ashok
Kumar threatened her not to return to their house without dowry,
failing which she would be killed with the child.
2(d). The prosecutrix was asked by the daughter of her
maternal grand-mother qua the birth of child and she told her that
she would not be accepted with the child, as she had no means to
raise the child. Accused, Ashok Kumar, on being contacted by the
5 Neutral Citation No. ( 2025:HHC:8614-DB )
prosecutrix, asked for dowry and flatly refused to take her along.
2(e). On the advice of the son-in-law of grand-mother, the
prosecutrix came to Chamba and filed a complaint before Deputy
Commissioner, Chamba, who, in turn advised her to file a
complaint before Deputy Superintendent of Police, Salooni,
Thereafter, the prosecutrix came to Salooni with her uncle and
made a complaint before Deputy Superintendent of Police,
Salooni, and she was assured that soon action would be taken.
Thereafter, accused Ashok Kumar alongwith other persons came
to the place of the prosecutrix and requested her to accompany
them with the infant and not to lodge any report against them
anywhere, but, she, having no trust on them, refused.
Subsequently, on the asking of accused persons, the prosecutrix
was called with her aunt by Shri Ami Chand, the then Pradhan of
Gram Panchayat Bhadela and a compromise was arrived at
whereby it was agreed that accused would not maltreat the
prosecutrix and they would treat her with respect as their daughter-
in-law and accused Ashok Kumar would also treat her as his wife
and the infant would be accepted as new born daughter. However,
after a week, accused Ashok Kumar and his parents again started
maltreating the prosecutrix. After the fortnight, accused Ashok
Kumar went to Baddi and he assured the prosecutrix that during
6 Neutral Citation No. ( 2025:HHC:8614-DB )
his next visit he would take her along after making arrangements.
Thereafter, the prosecutrix reported the matter to the police qua a
quarrel with her and she also contacted accused Ashok Kumar and
asked him to take her to Baddi. On the subsequent day, the
prosecutrix was advised by the parents of accused Ashok Kumar
to leave their house and stay with her aunt in the house of her
maternal grand-mother for some time. As accused Ashok Kumar
assured the prosecutrix to take her to Baddi, she alongwith her
infant left the house of the parents of accused Ashok Kumar.
However, accused Ashok Kumar failed to take the prosecutrix to
Baddi and she continued to live in the house of her maternal
grand-mother for about three months. In the interregnum, the
prosecurtrix contacted accused Ashok Kumar many times, but he
threatened her and did not come to take her. Ultimately, the
prosecurtrix approached Pradhan Ami Chand, who called both the
parties and also requested accused Ashok Kumar to take the
prosecutrix alongwith the infant, but he expressed displeasure.
Thus, the matter was again reported to the police, whereupon FIR
was registered.
2(f). Police, during the course of investigation, prepared the
spot map, got medically examined the prosecutrix, got conducted
DNA test of accused Ashok Kumar, wherein he was found to be
7 Neutral Citation No. ( 2025:HHC:8614-DB )
biological father of the infant, and recorded the statements of the
prosecution witnesses. After completion of the investigation, police
presented the challan in the learned Trial Court.
3. The prosecution, in order to prove its case, examined
eleven witnesses. Statements of the accused persons under
Section 313 Cr.P.C. were recorded, wherein they pleaded not guilty
and claimed innocence.
4. The learned Trial Court, vide impugned judgment dated
31.03.2014 acquitted the all the accused persons for the offences
punishable under Sections 366, 376, 120B and 506 IPC read with
Section 34 IPC, hence the instant appeal preferred by the
appellant/State.
5. The learned Senior Additional Advocate General for the
appellant/State contended that the impugned judgment is against
the law and facts, based upon surmises and conjectures, thus
liable to set-aside. He further contended that the learned Trial
Court has failed to appreciate the evidence in its right and true
perspective, as such the impugned judgment of acquittal passed
by the learned Trial Court deserves to be quashed and set-aside
by allowing the instant appeal and the accused persons be
convicted.
6. Conversely, the learned Senior Counsel for the
8 Neutral Citation No. ( 2025:HHC:8614-DB )
respondents/accused persons contended that the judgment
passed by the learned Trial Court is the result of proper
appreciation of the material on record and the same was passed
after appreciating the evidence and law in its right and true
perspective. He has further contended that the learned Trial Court
has passed a well reasoned judgment, which does not require any
interference, thus the instant appeal, which is devoid of any merit,
be dismissed.
7. We have heard the learned Senior Additional Advocate
General for the appellant/State, learned Senior Counsel for the
respondents/accused persons and carefully examined the entire
records.
8. 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 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
9 Neutral Citation No. ( 2025:HHC:8614-DB )
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.
9. 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 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
10 Neutral Citation No. ( 2025:HHC:8614-DB )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:
(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-
11 Neutral Citation No. ( 2025:HHC:8614-DB )
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.”
10. 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:
31.2.1. Where the approach or reasoning of the
12 Neutral Citation No. ( 2025:HHC:8614-DB )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 prosecutrix, 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
prosecutrix 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]
(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
13 Neutral Citation No. ( 2025:HHC:8614-DB )
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].”
11. 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
14 Neutral Citation No. ( 2025:HHC:8614-DB )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; and8.5. 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
15 Neutral Citation No. ( 2025:HHC:8614-DB )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.”
12. 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
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.
13. 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.
14. Now adverting to the facts of the case on hand. The
first question which arises for consideration is as to what was the
16 Neutral Citation No. ( 2025:HHC:8614-DB )
age of the prosecutrix at the relevant time. As per the statement of
the prosecutrix, her date of birth was 30.08.1995 and she was
brought up by her maternal grand-mother. She also deposed that
when she was three months old, her mother had expired and when
she was six months old, both the legs of her father got fractured
and thereafter he was unable to walk without the help of crutches,
therefore, she was brought up by her maternal grand-mother, as
her maternal grand-father was not alive. She started going to the
school at the age of six years.
15. PW-9, the father of the prosecutrix could not
recall the date of birth of the prosecutrix. He deposed that when
the prosecutrix was only six months old, his wife expired and after
her death the prosecutrix was brought up by her maternal grand-
mother. Therefore, no credence can be attached to his testimony
regarding the date of birth of the prosecutrix, as he could not
recollect her date of birth.
16. The date of birth of the prosecutrix, as mentioned in the
School Leaving Certificate, Ex. PW-3/B, is 30.10.1995. PW-3 the
then Head Master, Government Primary School, deposed that the
entry in School Leaving Certificate of the prosecutrix was made at
the time of her admission on the basis of birth certificate issued
from the Panchayat. In his cross-examination he feigned ignorance
17 Neutral Citation No. ( 2025:HHC:8614-DB )
as to whether the birth entry in the certificate issued from the
Panchayat was based on the pariwar register or birth and death
register.
17. The prosecutrix in her cross-examination admitted that
her date of birth was disclosed in the school at the time of the
admission by her maternal grand-mother. The father of the
prosecutrix also admitted that at the time of the admission in the
school the prosecutrix was accompanied by her maternal grand-
mother. Since the prosecutrix was accompanied by her maternal
grand-mother to the school at the time of her admission, as stated
by her father, therefore, it can be concluded that the date of birth,
i.e., 30.10.1995, as mentioned in the School Leaving Certificate,
Ex. PW-3/B, had been disclosed by her maternal grand-mother at
the time of her admission. It has come in the evidence on record
that the maternal grand-mother of the prosecutrix was illiterate and
an old lady. Therefore, it cannot be said with authenticity that she
was aware about the date of birth of the prosecutrix.
18. The Investigating Officer, i.e. PW-11 ASI Jagdish
Chand, stated in his cross-examination that in School Leaving
Certificate, Ex.PW-3/B, there was no reference of birth and death
register. As per his statement, birth and death register was not
found in the office of CMO of the concerned Panchayat where the
18 Neutral Citation No. ( 2025:HHC:8614-DB )
prosecutrix used to reside. Therefore, it has become clear that the
School Leaving Certificate showing date of birth of the prosecutrix
as 30.10.1995 is not based upon the birth and death register, as
such the same is not conclusive evidence to establish the exact
date of birth of the prosecutrix.
19. As observed earlier, PW-3 deposed that School
Leaving Certificate was based upon the certificate issued from the
Panchayat, but he feigned ignorance as to whether the birth entry
in the certificate issued from the Panchayat was based upon the
pariwar register or birth and death register. Therefore, no reliance
can be placed upon the School Leaving Certificate, Ex. PW-3/B.
20. As per the prosecution story, radiological age of the
prosecutrix was between 17 years and 19 years. PW-7 Dr. N.K.
Surya, deposed that according to the ossification test, the age of
the prosecutrix was found between 17 years and below 19 years,
as per his opinion, Ex. PW-7/B. In his cross-examination, he
admitted that the ossification test is not conclusive proof for the
determination of the age of the prosecutrix. He also admitted that
the age of the prosecutrix, whose ossification test was conducted,
might vary on the higher side as well as on the lower side.
21. It is well settled that ossification test though is a guiding
factor for determining the age but it is not conclusive and leaves a
19 Neutral Citation No. ( 2025:HHC:8614-DB )
margin of error of two years on either side. It is also a settled
position that the benefit of doubt with regard to the age of the
prosecutrix always goes in favour of the accused. In the instant
case, the radiologist has assessed the age of the prosecutrix
between 17 years and 19 years. Considering the margin of error in
age even as one year, the victim would be 20 years of age during
the relevant period. Even the prosecutrix, during her cross-
examination, deposed that she had entered her age to be of 20
years in the OPD Card prepared at PHC, Salooni.
22. Therefore, in the absence of any conclusive proof
about the age of the prosecutrix, it cannot be said that the she was
below 18 years of age at the time of the alleged incident in the
year 2009. The prosecution has, therefore, failed to prove beyond
reasonable doubt that the victim was below 18 years of age at the
relevant time.
23. Now the next question that arises for consideration is
as to whether the statement of prosecutrix inspires confidence. 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
20 Neutral Citation No. ( 2025:HHC:8614-DB )
of her statement. There is a 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. The prosecutrix
complaining of having been a victim of the offence of rape is not an
accomplice of the crime and there is no rule of law that her
testimony cannot be acted without corroboration on material
particulars.
24. 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.”
25. In Narender Kumar vs. State (NCT of Delhi), 2012 (7)
SCC 171, it has been observed as under:
21 Neutral Citation No. ( 2025:HHC:8614-DB )
“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.”
26. 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.”… … …
27. 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.
28. In the background of the aforesaid legal position, when
we consider the case in hand, we are of the opinion that the
22 Neutral Citation No. ( 2025:HHC:8614-DB )
statement of the prosecutrix does not inspire confidence. In her
cross-examination she could not recall the date and month when
accused Ashok met her for the first time and when for the first time
she visited the house of accused Ashok. She admitted that there
were many houses situated around the house of accused Ashok
and Ward Member of the Panchayat also resided near the house
of the accused persons. She further admitted that she stayed in
the house of accused Ashok for a total period of one and a half
year and she became pregnant at his house. She also admitted
that she used to visit PHC Salooni for medical checkup during her
pregnancy. She further admitted that she got recorded the name
of accused Ashok as her husband and son of Jodha Ram and had
entered her age to be 20 years in the OPD Card prepared at PHC,
Salooni. She also stated that she had not complained to anyone
against accused Ashok during her checkup at PHC, Salooni. She
also admitted that she had given birth to a daughter at the house
of accused Ashok. She further admitted that during the period of
one and a half years’ stay at the place of accused Ashok, she
never visited the place of her maternal grand-mother. She further
stated that when accused Ashok had left for Baddi to do a job, she
used to call him on phone from the phone of her mother-in-law and
used to do usual domestic chores at the place of accused Ashok.
23 Neutral Citation No. ( 2025:HHC:8614-DB )
The prosecutrix also admitted in her cross-examination that she
stayed in the house of accused Ashok as his wife and accused
Ashok used to live as her husband and during the period of one
and a half year of her stay, she did not visit the place of her aunt.
She stated that during the period of one and half years’ stay, she
had entered into compromise with accused twice, i.e., once before
Pradhan Shri Amin Chand and on second occasion she entered
into compromise as per her own. She also admitted that before
the learned Chief Judicial Magistrate, she had voluntarily stated
that she was living in the house of accused Ashok as his wife. She
further admitted that she used to vermilion (sindoor) in the partition
of her hair, since she had given birth to a daughter and she was
married.
29. Thus, the entire cross-examination of the prosecutrix
reveals that she stayed in the house of accused Ashok as his wife
and had accepted accused Ashok as her husband. She had
entered into compromise with accused Ashok on two occasions,
i.e., once before Pradhan Shri Amin Chand (PW-2) and on the
second occasion she had entered into compromise as per her
own. PW-2 Shri Amin Chand, the then Pradhan Gram Panchayat,
Bhadela, also stated that he called the prosecutrix, who was
accompanied by her uncle, aunt, her brother-in-law (jija) and her
24 Neutral Citation No. ( 2025:HHC:8614-DB )
father also came there and the compromise was effected at his
place on 12.04.2011, in presence of witnesses namely Tek Chand,
Vias, Bimla, Rajinder Kumar, Dhano Kumar and Prem Lal. He
further deposed that compromise, Ex. PW-1/B, was signed by him
and all the witnesses present there. He also deposed that as per
compromise, Ex. PW-1/B, accused Ashok and the prosecutrix were
husband and wife and accused Ashok accepted that he had a
daughter of three months.
30. Hence, in view of the entire evidence on record,
particularly, the statement of the prosecutrix, it has become clear
that it was the prosecutrix alone who had chosen the company of
accused Ashok at his place of residence and she lived with him as
his wife. She was of the age of the discretion and was aware of
what she was doing. She never put up any struggle or raised any
alarm while she was being sexually assaulted by accused Ashok
as alleged at his residence. She had remained in the company of
accused Ashok for a quite long period of one and half year without
any protest and also came in physical contact with him several
times and gave birth to a child. The evidence on record indicates
that the physical relationship between the appellant and the
prosecutrix was consensual. The prosecutrix, being a willing party
to go and stay with the accused as per her own wish, in such a
25 Neutral Citation No. ( 2025:HHC:8614-DB )
situation culpability of the accused persons has not been
established. In the absence of any evidence to prove that the
prosecutrix was below 18 years of age, it cannot be said to be a
case of either kidnapping or rape as the consensual relationship
would not constitute an offence of rape within the meaning of
Section 375 of the IPC.
31. In view of what has been discussed hereinabove, no
interference in the judgment of acquittal, dated 31.03.2014, passed
by the learned Additional Sessions Judge, Chamba, District
Chamba, H.P., in Sessions Trial No. 51/12 (Regd. No. 63/2013), is
required. The view taken by the learned Trial Court was the only
possible view, as such the appeal, which sans merits, deserves
dismissal and is accordingly dismissed. Bail bonds are
discharged.
Pending application(s), if any, shall also stand(s)
disposed of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
1st April, 2025
(virender)
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