Baldev Singh vs State of H.P

1.Appellant Baldev Singh (hereinafter referred to as the ‘accused’) is a convict. He has been convicted by learned Additional Sessions Judge,

Hamirpur (H.P.) for the commission of an offence punishable under Sections 376 and 506 of the Indian Penal Code and sentenced to undergo

rigorous imprisonment for seven years and to pay Rs.20,000/- as fine under Section 376 IPC and to undergo simple imprisonment for one year for the

commission of offence punishable under Section 506 IPC vide judgment passed in Sessions Trial No. 2 of 2015.

The present is a case wherein either way, a very pious and sensitive relationship between father-in-law and daughter-in-law are at stake, because

the victim of the occurrence is none-else but the daughter-in-law of accused Baldev Singh. Therefore, if the prosecution case as disclosed from the

final report and the documents filed therewith, if ultimately turns as correct, the pious relationship between the father- in-law and daugther-in-law

would certainly get tarnished and in case turns to be false, the result would remain the same.

FACTS OF THE CASE:

PW-4 Jaspal is the son of accused Baldev Singh. He was married to the prosecutrix (PW-10) (name withheld) on 8.8.2013. He had been working

in some private company at Baddi, Tehsil Nalagarh, District Solan, H.P., and used to visit his house at village Dharyara, Tehsil Tonidevi, District

Hamirpur intermittently. In his absence, his wife, the prosecutrix used to live with his parents, accused Baldev Singh and mother Shakuntla Devi. In

the month of May, 2014, the prosecutrix went with her father to her parental house situated at village Dain, Tehsil Barsar, District Hamirpur, H.P.,

and did not return to matrimonial home. He, therefore, came to his village from Baddi in the month of June, 2014. He accompanied by PW-2 Pawan

Kumar, PW-3 Sushma Devi and also his uncles Anil Kumar and Kashmir Kumar went to the house of his in-laws at village Dain on 28.6.2014 to bring

the prosecutrix back to the matrimonial home. They all persuaded her to join the company of PW-4 and return to matrimonial home, but at the pretext

that the accused had subjected her to sexual intercourse repeatedly while in unconscious condition on account of smoke of “Dhuniâ€, he had been

administering to her to cure the disease from which she allegeldy was suffering during mid night, she refused to return to the matrimonial home.

As per further case of the prosecution, the prosecutrix accompanied by her father Balbir Singh, PW-11 went to Police Station, Bhoranj on 4.7.2014

and lodged the FIR Ext. PW-15/A with the allegation that she fell ill in the Month of February, 2014. When disclosed this fact to her mother-in-law,

the latter advised her to take treatment from her father-in-law, the accused who allegedly was “Chela†and professes to have treated many

patients with the help of witchcraft, he had been knowing. On the advise of her mother-in-law, the prosecutrix went to the accused, who on seeing her

told that she was suffering from “Opra†(psychological disorder). He advised her that with the help of “Dhuni†(mixture of grain items/herbs

etc. etc., duly mashed with either Desi Ghee or oil), which he will administer to her during mid-night i.e. in between 11.00-12.00 and she will be alright.

The accused accordingly started treating her by administering “Dhuniâ€. In the beginning for 2-3 days, the effect of smoke emanating from

“Dhuni†was not so severe, rather mild. However, after 2-3 days, due to smoke emanating, she started becoming unconscious. It is taking

advantage of such a situation, the accused allegedly subjected her to sexual intercourse, while she being in a state of unconsciousness. On one day,

when she all of sudden woke - up, noticed herself naked and accused sleeping with her. It is on that day, finding herself in naked condition and the

accused sleeping with her, she came to know that she had been subjected to sexual intercourse. When she told him that what he did is not right and

that she will apprise her husband and mother-in-law, he threatened her with dire consequences. In the month of March, 2014, accused asked her to

accompany him to Shimla for getting her ultrasound conducted. When she refused, he told that he will not allow her to go to her parents. Her

cellphone was also snatched.

It is in the month of April, 2014, her husband came to the house and she apprised him about the entire episode. He, however, did nothing and

returned to Baddi. In the month of May, 2014, her father Balbir Chand (PW-11) came to her matrimonial home. She went with him to the house of

her parents. Her father taking note of her condition, asked as to what happened. She, however, did not disclose anything to him due to fear and to

save the honour of the family. However, in the month of June, 2014, on being asked by her father, she disclosed such act the accused committed with

her to him also. On this, her father called the accused repeatedly, however the latter failed to respond to his calls. It is on such allegations, the FIR

Ext. PW-15/A came to be recorded in Police Station, Bhoranj against the accused.

The police swung into action. ASI Jai Chand after registration of FIR Ext. PW-15/A arranged to send the prosecutrix to CHC, Bhoranj for getting

her medical examination conducted through Constable Santosh Kumari PW-13. Application Ext.PW-15/B in this regard was made to the Medical

Officer and she was examined and MLC Ext.PW-5/A was obtained and taken on record. The accused was arrested on 5.7.2014 and also

interrogated. On the same day, he was also got medically examined in the Community Health Centre, Bhoranj. PW-14 LHC Sanjay Kumar and

Constable Surinder Kumar had taken the accused to Hospital and his medical examination was conducted by Dr. Prithi Chaudhary PW-6 vide MLC

Ext.PW-6/B. On the identification given by the prosecutrix, the map of the place Ext.PW-15/C, where the accused had been administering

‘Dhuni’ and subjecting the prosecutrix to sexual intercourse was prepared. The photographs of that place were also taken and the investigation

conducted there videographed by HHC Kuldeep Singh, PW-9. On 7.7.2014, the statement of prosecutrix was got recorded under Section 164 Cr.P.C

in the Court of learned JMIC, Hamirpur. On the same day, her ultrasound was also got conducted in Regional Hospital, Hamirpur vide report Ext.PW-

12/C. The thermo prints thereof are Ext.PW-12/B. Shri Kashmir Singh PW-1 has prepared the CDs of photographs Ext. PW-1/A and Ext.PW-1/B.

The Secretary, Gram Panchayat, Kanjian PW-7 Pawan Kumar had produced the copy of Parivar register Ext.PW-7/A and it was taken on record.

The statements of witnesses Ext.PW- 15/D, Ext.PW-15/E, Ext.PW-15/E, Ext.PW-15/F and Ext.PW-15/G were recorded as per their version. The

statements of remaining prosecution witnesses under Section 161 Cr.P.C were also recorded.

THE OUTCOME OF THE INVESTIGATION CONDUCTED:

On the completion of the investigation and receipt of report from the Forensic Science Laboratory, Inspector/SHO Om Chand PW - 16 has

prepared the final report and filed the same in the Court. Since the offence the accused allegedly committed was triable exclusively by the Court of

Sessions, therefore, committed accordingly.

On completion of investigation, it transpired that somewhere in the month of February, 2014, the accused subjected his own daugther-in-law (name

withheld) to sexual intercourse at a time while unconscious on account of impact of “Dhuniâ€, which he had been administering to her to cure her

disease. In order to save the honour of the family and being afraid of from the accused, the matter was not reported to the police till 4.7.2014. Though,

such an act attributed to the accused was disclosed by the prosecutrix to her mother-in-law and her husband, but of no avail, as they did nothing. She

did not disclose the incident even to her father also till June, 2014, irrespective of being inquired from her because of her deteriorating health condition.

With such allegations, the final report came to be filed against the accused in the Court. On commitment of the case by learned Magistrate, learned

Additional Sessions Judge had appreciated the final report and on finding a prima-facie case having been made out against the accused framed charge

against him for the commission of offence punishable under Sections 376 and 506 IPC. The accused, however, pleaded not guilty and claimed trial.

The prosecution, as such, was called upon to produce the evidence in support of its case.

PROSECUTION EVIDENCE IN NUT-SHELL:

The prosecution in order to sustain the charge against the accused has examined 16 witnesses in all. The material prosecution witnesses are the

prosecutrix, PW-10, her father Balbir Chand PW-11, Pradhan Gram Panchayat, Kanjian Pawan Kumar PW-7. Ward Panch Sushma Devi PW- 3.

Jaspal, the husband of the prosecutrix PW-4. Dr. Sapna Dhiman PW-7 and Dr. Prithi Chaudhary PW-6. The remaining prosecution witnesses are

formal as PW-1 Kashmir Sing, proprietor of Sangam Studio, Bassi (Bhoranj). He developed CDs (PW-1/A & Ext.PW-1/B) from a memory card

handed over to him by the police. He has also issued the certificate Ext.PW-1/C in this regard. PW-7 Pawan Kumar, the Secretary of Gram

Panchayat who has produced the abstract of parivar register Ext.PW-7/A qua family of accused Baldev Singh. PW-8 Raghujit Singh was posted as

MHC who has received the case property and retained the same and further sent to Forensic Science Laboratory for analysis. Kuldeep Chand PW-9

had videographed the proceedings qua identification of the place where the accused had been subjecting the prosecutrix to sexual intercourse, which

later on developed in the form of CDs by PW-1 Kashmir Singh, proprietor of Sangam Studio, Bassi (Bhoranj). PW-12 Dr. Rakesh Sharma is the

Radiologist who had conducted the ultrasound of the prosecutrix and submitted the report Ext.PW-12/C along with thermoprints Ext.PW-12/B. As per

ultrasound he conducted, the prosecutrix was found with gestation age as 25 weeks and three days. PW-13 Lady Constable Santosh Kumari who had

been accompanying the prosecutrix to the hospital at the time of her medical examination and collected various parcels preserved in the hospital by the

Medical Officer, which she has deposited with MHC in the Police Station. PW-14 LHC Sanjay Kumar who accompanied the accused to the hospital

for getting his medical examination conducted. PW-15 ASI Jai Chand is the Investigating Officer, whereas, PW-16 Inspector Om Chand, the then

Inspector/SHO, Police Station, Bhoranj, District Hamirpur has prepared the final report and presented the same in the Court.

The statement of accused under Section 313 Cr.P.C was also recorded. The prosecution case that the prosecutrix is married to his son Jaspal

PW-4, had been residing with them in the matrimonial home as Jaspal was working in private Company at Baddi and that the prosecutrix fell ill in the

month of February, 2014 have been admitted as correct while answering questions No. 2 to 6. The facts that PW-11, the father of the prosecutrix had

been doing some private job at Ahmadabad (Gujarat) and that in the month of May, 2014 he visited his native village Dain and their house have also

been admitted, while answering question Nos. 24 and 25. It is also admitted while answering question No. 31 that Jaspal, his son accompanied by

Pradhan/Ward Panch etc., went to the house of parents of the prosecutrix, however, it is denied that she refused to return to the matrimonial home at

the pretext that the accused had been subjecting her to sexual intercourse. It was also admitted while answering question No. 36 that prosecutrix was

pregnant. He has also admitted that after his arrest on 5.7.2014, he was subjected to medical examination. The rest of the incriminating circumstances

appearing against him in the prosecution evidence have, however, been denied either being wrong or for want of knowledge. According to him, he is

innocent and has not committed any offence. He, however, opted for not producing any evidence in his defence.

CONCLUSION DRAWN BY LEARNED TRIAL COURT:

Learned trial Court on appreciation of the oral as well as documentary evidence available on record and hearing learned Public Prosecutor and

learned defence counsel has convicted and sentenced the accused, as pointed out at the very outset.

GROUNDS OF CHALLENGE:

The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the prosecution has miserably failed to prove

its case against the accused beyond all reasonable doubt and as such, learned trial Court has returned the findings to the contrary, convicting and

sentencing the accused on the basis of hypothesis, conjectures and surmises. In view of the prosecution evidence not inspiring any confidence, the

benefit of doubt should have been given to the accused. The settled principles in criminal administration of justice that the accused cannot be convicted

until and unless it is proved beyond reasonable doubt that he has committed the alleged offence have been ignored. As per the statement of

prosecutrix recorded under Section 164 Cr.P.C., she had disclosed the incident to her father PW-11 in the month of May, 2014. The registration of

case was, therefore, stated to be delayed thereafter also till July, 2014. There is no evidence suggesting that the accused attacked the prosecutrix with

‘Khukri’ as she disclosed in her statement under Section 164 Cr.P.C., as she has not stated so while in the witness box. Also that, the alleged

sexual assault committed upon her in the month of February, 2014 was not disclosed by her to her husband immediately and rather disclosed the same

in the month of April, 2014. As per her statement, after solemnization of marriage on 8.8.2013, she stayed with her husband Jaspal for a period about

five months. Therefore, it is doubtful that she was living there in the month of February, 2014 also, when allegedly assaulted sexually. The failure on

the part of the Investigating Officer to obtain the record pertaining to the treatment of the prosecutrix because as per her own version, she had

conceived child in the month of January and was going for routine check-up to the hospital at Bhota alone is also stated to be fatal to the prosecution

case. The failure of the I.O to take in possession the ‘Dhuni’ items or atleast container in which the same was being administered, is also fatal

to the prosecution case. Whether the accused was really a ‘Chela’ and knowing witchcraft, the independent witnesses from the vicinity should

have been examined. Nothing has come in the statement of the prosecutrix recorded under Section 154 Cr.P.C that she had disclosed the occurrence

to her mother-in-law, therefore, by stating so while in the witness box she has improved her version. Rajan, the cousin of the prosecutrix was not bed

ridden, however, driving scooty and also holding the driving licence. The accused allegedly failed to arrange for such defence being in custody. The

impugned judgment, therefore, has been sought to be quashed and the accused acquitted of the charge framed against him.

RIVAL SUBMISSIONS:

Mr. Rajiv Rai, learned counsel representing the appellant-convict has argued with all vehemence that learned trial Judge in a case of no evidence

has not only held the accused, none-else but the father-in-law of the prosecutrix guilty of subjecting the prosecutrix, his daughter-in-law to sexual

intercourse but also convicted him to rigorous imprisonment for seven years and to pay Rs.20,000/- as fine under Section 376 IPC and to undergo

simple imprisonment of for one year for the commission of offence punishable under Section 506 IPC. The highly doubtful and interested evidence

having come on record by way of own testimony of prosecutrix and her father PW- 11 has erroneously been relied upon. According to Mr. Rai, it is

writ large on the face of the record that the prosecutrix and her father were interested to involve the accused in a false case to the reasons best

known to them. The conduct of the prosecutrix that she did not disclose the occurrence either to her mother till April, 2014 or even to her husband also

amply demonstrates that a false case has been engineered with due deliberation against the accused. When the occurrence was disclosed by her to

PW-11 in the month of May, 2014, why the registration of case was delayed, is also a circumstance which renders the prosecution case highly

doubtful. Learned trial Judge while holding that the accused should have produced the evidence to show otherwise according to Mr. Rai are highly

illegal and unknown in the criminal administration of justice because the prosecution has to stand on its own legs. Also that, when on the basis of

evidence available on record two possible views emerge, the view favouring the accused has to be accepted is also not taken into consideration. It is

also pointed out that the statement under Section 313 Cr.P.C could have not been used against the accused until and unless the prosecution itself

produced cogent and reliable evidence, suggesting the involvement of the accused in the commission of the offence. Therefore, it is urged that the

accused has been falsely framed in this case by leveling heinous allegations without there being any proof qua the same. The impugned judgment, as

such, has been sought to be quashed.

On the other hand, Mr. R.P. Singh, learned Deputy Advocate General has argued that the own statement of the prosecutrix in this case is

sufficient to hold the accused guilty of the offence. The same according to Mr. Singh finds corroboration from other evidence i.e. the statement of her

father PW-11 and also the medical evidence. It has, therefore, been urged that well reasoned judgment passed by learned trial Court calls for no

interference in the case in hand.

MY FINDINGS:

On hearing Mr. Rajiv Rai, learned counsel representing the appellant-convict and Mr. R.P. Singh, learned Deputy Advocate General as well as

going through the evidence comprising oral as well as documentary, no doubt the offence the accused allegedly committed is not only heinous but

grievous also because it is the father-in-law who allegedly has subjected the daughter-in-law to sexual intercourse at such a stage when after

administration of ‘Dhuni’, she had been becoming unconscious. The prosecution, as noticed supra, has not only made an effort to persuade this

Court to believe its story as correct but also that such an act by the accused with the prosecutrix was without her consent and against her will.

The rival submissions as made though have to be scrutinized in the light of the evidence having come on record, however, before that I deem it

appropriate to discuss as to what constitutes the offence punishable under Section 376 IPC in legal parlance.

The present in the given facts and circumstances is a case which falls under first and second description to Section 375 IPC. The same reads as

follows:

“375-Rape. A man is said to commit “rape†who, except in the case hereinafter excepted, has sexual intercourse with a woman under

circumstances falling under any of the six following descriptions:

First:- Against her will.

Secondly:- without her consent.

Thirdly:- xxxx

Fourthly:- xxxx

Fifthly:- xxxx

Sixthly:- xxxx

Explanation:- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rapeâ€​.

What constitutes consent has been discussed by the Apex Court in Kaini Rajan vs. State of Kerala, JT 2013 (12) SC 538, as follows:

“12. Section 375 IPC defines the expression “rapeâ€, which indicates that the first clause operates, where the woman is in possession of her

senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and

fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is

interested in fear of death or of hurt. The expression “against her will†means that the act must have been done in spite of the opposition of the

woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent†is also stated to be an act of

reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to

the expression “consentâ€. Section 90, though, does not define “consentâ€, but describes what is not consent. “Consentâ€, for the purpose of

Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of

the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a

careful study of all relevant circumstances.â€​

The principle settled in the judgment supra, therefore, is that the prosecutrix was a consenting party to the sexual intercourse or not can only be

ascertained on careful study of all relevant circumstances. Since the prosecutrix on the day of her examination i.e. 8.7.2015 had disclosed her age as

27 years, therefore, in the month of February-March, 2014 when allegedly subjected to sexual intercourse, she must be 25-26 years of age. It is now

to be seen that the evidence as has come on record is sufficient to form an opinion that the accused subjected her to sexual intercourse and if it is so,

whether such an act was without her consent and against her will.

In State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393, the Apex Court has held that the own statement of the prosecutrix if

inspires confidence is sufficient to bring the guilt home to the accused. The apex Court in order to ensure that an innocent person is not implicated in

the commission of an offence of this nature, while taking note of the judgment in Gurmeet Singh’s case supra has however diluted the ratio

thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and held that the statement of prosecutrix cannot be universally and mechanically

applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can’t also be ruled-out.

Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC

While placing reliance on this judgment and the law laid down by the Apex Court in the judgment supra, this Court in Criminal Appeal No. 481 of

2009 titled State of Himachal Pradesh V. Negi Ram, decided on 27th May, 2016 has held as under:

“15. Therefore, the legal position as discussed supra makes it crystal clear that irrespective of an offence of this nature not only grievous but

heinous also, the Court should not got swayed merely by passion and influence only on account of the offence has been committed against a woman

and rather keep in mind the cardinal principle of criminal administration of justice, that an offender has to be believed to be innocent unless and until

held guilty by the Court after satisfying its judicial conscience on the basis of given facts and circumstances of each case as well as proper

appreciation of the evidence available on record.â€​

As per the facts, which are not in controversy, the prosecutrix got married to Jaspal PW - 4 on 8.8.2013. The said witness had been working in a

private company at Baddi and used to visit his native place intermittently. The prosecutrix had been living behind with her father-in-law, the accused

and the mother- in-law in the matrimonial home. The prosecution in order to bring the guilt home to the accused has placed reliance on the statement

of the prosecutrix PW-10 and her father PW-11. Besides, her husband PW-4, Pradhan Gram Panchyat Pawan Kumar PW-2, Ward Panch Sushma

Devi PW-3 were also associated. Learned trial Judge relying upon the sole testimony of the prosecutrix and on that of her father PW-11 and also the

medical evidence has held the accused guilty and convicted him. This Court, however, finds that the present is not a case where the findings of

conviction could have been recorded against the accused on the basis of sole testimony of the prosecutrix, particularly when she did not disclose the

incident as per her own version till April, 2014 to anyone, including her husband PW-4. Her husband though denied she having disclosed the episode to

him in the month of April, 2014. As regards her father PW-11, as per her own version she informed him in the month of June, 2014 for the first time

about the alleged sexual assault committed by the accused. True it is that the delay is not always fatal in such cases, but its impact has to be seen vis-

a-vis the facts and circumstances of each case. Support in this regard can be drawn from the judgment of the Apex Court in Rajesh Patel V. State of

Jharkhan, AIR 2013 SC 1497 . This judgment reads as follows:

“9. Further, there is an inordinate delay of nearly 11 days in lodging the FIR with the jurisdictional police. The explanation given by the prosecutrix

in not lodging the complaint within the reasonable period after the alleged offence committed by the appellant is that she went to her house and

narrated the offence committed by the appellant to her mother and on assurance of Purnendu Babuâ€" PW3, the mother remained silent for two to

four days on the assurance that he will take action in the matter. Further, the explanation given by the prosecutrix regarding the delay is that at the

time of commission of offence the appellant had threatened her that in case she lodges any complaint against him, she would be killed. The said

explanation is once again not a tenable explanation. Further, the reason assigned by the High Court regarding not lodging the complaint immediately or

within a reasonable period, it has observed that in case of rape, the victim girl hardly dares to go to the police station and make the matter open to all

out of fear of stigma which will be attached with the girls who are ravished. Also, the reason assigned by the trial court which justifies the explanation

offered by the prosecution regarding the delay in lodging the complaint against the appellant has been erroneously accepted by the High Court in the

impugned judgment. In addition to that, further observation made by the High Court regarding the delay is that the prosecutrix as well as her mother

tried to get justice by interference of PW3, who is a common friend of both of them and PW4, the Doctor with whom the prosecutrix was working as

a Nurse. When the same did not materialize, after lapse of 11 days, FIR was lodged with the jurisdictional police for the offence said to have been

committed by the appellant. Further, the High Court has also proceeded to record the reason that prosecutrix had every opportunity to give different

date of occurrence instead of 14.2.93 but she did not do it which reason is not tenable in law. Further, the High Court accepted the observation made

by the learned trial Judge wherein the explanation given by the prosecutrix in her evidence about being terrorized to be killed by the appellant in case

of reporting the matter to the police, is wholly untenable in law. The same is not only unnatural but also improbable. Therefore, the inordinate delay of

11 days in lodging the FIR against the appellant is fatal to the prosecution case. This vital aspect regarding inordinate delay in lodging the FIR not only

makes the prosecution case improbable to accept but the reasons and observations made by the trial court as well as the High Court in the impugned

judgments are wholly untenable in law and the same cannot be accepted. Therefore, the findings and observations made by the courts below in

accepting delay in lodging the FIR by assigning unsatisfactory reasons cannot be accepted by this Court as the findings and reasons are erroneous in

law.â€​

Similar is the law laid down again by the Apex Court in Ramdas and others V. State of Maharashtra, AIR 2007 SC 155. The relevant extract of

this judgment is also reproduced as under:-

“23. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly

stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the

prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be

considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report

has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report

adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to

explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation

for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no

time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station

immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the

question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such

a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice

available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of

the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable

persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy

rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are case where the initial hesitation of the

prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of

delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts

and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the

court that is important. No strait jacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that

however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See AIR

1956 SC 216 : Pandurang and others vs. State of Hyderabad). Thus mere delay in lodging of the report may not by itself be fatal to the case of the

prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of

evidence by the court of fact.â€​

The delay, in the case in hand, to my mind, is fatal. It appears that nothing of the sort did take place with the prosecutrix and the accused has been

implicated falsely for some reasons best known to the prosecutrix or her parents. The prosecution story right from the very beginning is highly

doubtful. Nothing has come on record as to what was the nature of the disease from which the prosecutrix was suffering. Though, it has come in her

statement that she was suffering from fever, however, if it is believed to be true, the same could have been cured in a much better way by getting

medical treatment. Nothing has come in the prosecution story that she was suffering from “Opra†(psychological disorder). This story has been

introduced while submitting that it is the accused who when examined the prosecutrix disclosed that she was suffering from “Opraâ€. Even if the

prosecution story is believed to be true that he administered “Dhuni†to her for few days, nothing specific has come on record qua the exact

duration of such treatment. Even if she was suffering from any such disease, whether it got cured by way of administering ‘Dhuniâ€​ by the accused

for few days, if not, whether she went for treatment on medical side, nothing to this effect has also come on record. In such a situation, the only

reasonable and plausible conclusion would be that the prosecutrix neither fell ill nor administered any treatment by her father-in-law, the accused.

There is nothing on record to suggest that the accused was a “Chela/Tantrik†and with the help of supernatural power, having come to know

about the ailments/problems of patients brought to him, suffering and that after coming to know about the disease he had been treating his patients

with the help of such super natural powers. The story so invented is, therefore, palpably false, hence could not have been believed to be true at all by

any stretch of imagination.

Admittedly, the prosecutrix was pregnant because as per her own version, she had conceived the pregnancy from the lions of her husband PW-4.

It seems to be not true that the accused asked her either to accompany him to the hospital for ultrasound test conducted or she will not be allowed to

go out of the house including the place of her parents. Even if the accused wanted to get her ultrasound conducted and she having been subjected to

sexual intercourse, it is not understandable as to why she refused for undergoing such test. This also casts a doubt about the authenticity and

genuineness of the prosecution story.

Interestingly enough, the accused as per the prosecution story had been subjecting her to sexual intercourse after she having been becoming

unconscious with the smoke emanating from the items including herbals being used in that “Dhuniâ€, however, she could feel it only during that

night when woke up all of sudden and found herself sleeping in naked condition, whereas, accused was also sleeping with her. In the considered

opinion of this Court, at the first instance, it is not possible to commit sexual intercourse with an unconscious lady, secondly, even if committed, she will

definitely come to know about such an act committed with her immediately on regaining the consciousness. Such common things having escaped the

notice of learned trial Judge is not only disturbing but amazing to this Court. Learned trial Judge has acted and behaved in a fashion and believed the

prosecution case as find mentioned in the police report as correct, without making any effort to critically analyzing the whole material available on

record.

As is noted hereinabove, it is highly doubtful that the prosecutrix has disclosed the episode to her husband in the month of April, 2014 and to her

mother-in-law also. Had it been so, they both would have certainly not tolerated such an act and behaviour of the accused at all. Even if it is believed

that her husband did nothing and returned to Baddi, she should have not tolerated such unbecoming behaviour of the accused at all and rather reported

the matter atleast to her parents, if not police or the Gram Panchayat straightway. There was no occasion to her to have concealed such a ghastly act

on the part of the accused till June, 2014, had it actually been taken place.. Even if it is believed to be so, in that event also, the FIR should have been

registered without wasting any further time. However, the same has been registered in the month of July i.e. 4.7.2014. If not shocking, it is painful to

point out that in order to implicate father-in-law falsely without caring that what will be the repercussions thereof in the public at large, the FIR was

registered after due deliberation to the reasons best known to the prosecutrix and her father.

As per prosecution story, the prosecutrix left the matrimonial home in the month of May, 2014 and did not come back. Her husband PW-4 came to

the village on 27.06.2014. He went to the Pradhan Gram Panchayat and also the Ward Panch and requested them to help him by persuading his wife,

the prosecutrix to come back to the matrimonial home. The Pradhan PW-2, Ward Panch PW-3, husband of the prosecutrix PW-4 accompanied by his

uncles went to the prosecutrix at her parents’ house. They intervened and persuaded her to return to the matrimonial home, however, as per

version of Pradhan, Ward Panch and also that of her husband PW-4, the prosecutrix refused to return to the matrimonial home. She, according to

them, did not disclose any reason therefor. The prosecution story that she refused to accompany them to the matrimonial home at the pretext that she

has been sexually assaulted by the accused, in the manner, as claimed by the prosecution, has been denied by them when allowed to be cross-

examined by learned Public Prosecutor. Their testimony that the prosecutrix did not disclose any reason of her not accompanying them to the

matrimonial home, however, remained unshattered.

Though, as per opinion of Dr. Sapna Dhiman, PW-5, on examination of the prosecutrix, the possibility of she being subjected to sexual intercourse

cannot be ruled-out. However, if the report of the chemical examiner Ext.PW-15/H is seen, blood and semen could not be detected on shirt, dupatta,

salwar, pubic hair and endocervical swab and on the pubic hair of accused Baldev Singh. Blood even could not be detected on underwear of accused

Baldev Singh, however, human semen was detected on that. Such medical evidence and scientific investigation got conducted is also of no help in the

case in hand, because the occurrence is of February, 2014, whereas, she was got medically examined in the month of July, 2014, therefore, such

investigation is merely an eye wash. Otherwise also, she was a married lady and there is nothing surprising or important in the opinion of the doctor

because she must be cohabiting with her husband and as per her own version even carrying the pregnancy also from his lions.

The evidence as has come on record by way of the official witnesses as discussed hereinabove could have been used as link evidence, had the

prosecution been otherwise able to prove its against the accused beyond all reasonable doubt.

Therefore, the close scrutiny of the evidence, in the manner as aforesaid amply demonstrates that the prosecutrix and for that matter her father to

the reasons best known to them have implicated falsely the accused in this case and thereby if not totally destroyed the social fibre has certainly

weakened it and also put a big question mark on the pious relations between a father-in-law and daughter-in-law. Additionally, the prosecution story

which in the opinion of this Court has been engineered and fabricated has culminated in a discussion that a father-in-law can also assault sexually his

own daughter-in-law.

In a Division Bench judgment authored on 22.09.2017 by me in Criminal Appeal No. 31 of 2017 titled Vivek Singh V. State of H.P., a case having

more or less similar facts, it is observed as under:-

“35. Before parting, we would be failing in our duty if not point out the overall conduct of the Investigating Agency which has implicated the

accused in a false case on the basis of highly interested evidence i.e. the only statement of complainant who was not only inimical to the accused but

also to other members of his family. Her mother PW-2 Chino Devi, though helped her daughter, the complainant in getting the accused booked falsely,

however, unsuccessfully. Any how, we leave it open to high ups in police department to take steps as warranted to sensitize the officers/I.Os so that

any such instance does not reoccur.

Learned trial Judge has also failed to appreciate the evidence in its right perspective and swayed only by the severity of the allegations and the

alleged incident of rape with a minor below two years of age by none else but allegedly her father. Since the allegations leveled against the accused

were highly sensitive having repercussions in the society as a whole, an onerous duty was cast upon learned trial Judge to have examined the given

facts and circumstances of the case and also evidence available on record with all circumspection and more care and caution. Due to such an

approach in the matter, pious relations between a father and daughter got tarnished. We hope and trust that in a case of this nature, the Investigators,

Prosecutors and Adjudicators shall discharge their respective duties in the light of the principles we settled in this judgment and also in accordance

with law. With the above observations, the appeal is finally disposed of.â€​

In this case also, neither the investigating agency has made an effort to separate grain from the chaff nor the I.O. made any effort to find out the

truth and to the contrary investigated the matter as usual and in a routine manner to implicate the accused in this case by hook and crook with the

result that he has been convicted and sentenced, as pointed out at the very out set.

Being so, the findings recorded against the accused are neither legally nor factually sustainable. The impugned judgment, as such, does not stand

the test of judicial scrutiny, hence, deserves to be quashed and set aside.

In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the impugned judgment is

quashed and set aside and the accused is acquitted of the charge framed under Section 376 and 506 IPC. He presently is undergoing sentence,

therefore, if not required in any other case, be set free forthwith. The release warrant be prepared accordingly. The fine amount as imposed upon the

accused, if deposited, shall be refunded to him against proper receipt.