State of Himachal Pradesh vs Kuldeep Singh Thakur

Justice Deepak Gupta, J.—This appeal by the State is directed against the judgment, dated 28.4.2003, delivered in Sessions Trial No. 12-S/7 of 2001, by the learned Additional Sessions Judge, Shimla, H.P., whereby he acquitted the accused of having committed an offence punishable u/s 376 of the IPC. The prosecutrix, who was, admittedly, over 16 years of age, filed a complaint with the police (recorded as FIR Ext. PW-4/A). The gist of the report, which is relevant for the decision of the case, is that she had lost her father and she was residing with her mother in Kasumpti where her mother works as a maid servant. The prosecutrix had stopped studies after 8th class in 1997 and since 1999, she had been attending Government Tailoring School at Vikasnagar to learn tailoring. The accused Kuldeep was known to her since he belonged to her village. He was working as a Conductor in a private bus of Veenu Travels. They were introduced to each other by one Nirmala, who also belonged to the same village.

The crux of the allegations against the accused is that in the month of March, 2000, the accused first proposed marriage with the prosecutrix and sent a letter in this regard, which the prosecutrix tore. Thereafter, the accused used to come to her quarter whenever her mother was not present there and proposed to marry her. In the month of June, 2000, the accused committed sexual intercourse with her, after having promised that he would marry her. In the month of July, twice they both had sexual intercourse, but thereafter the accused stopped coming to her quarter and talked to her on telephone only. The prosecutrix became pregnant and when this happened, she called the accused and asked him to marry her, but he refused. Even the parents of the accused refused to get him married with the prosecutrix and thereafter she lodged the complaint on 18.8.2000.

The prosecutrix, while appearing in the Court, made a similar statement. Assuming for the sake of arguments that this statement is true, the fact is that the sexual intercourse was a consensual act of both the parties. It is important to note that though in the police challan, it was stated that the accused had committed an offence u/s 420 IPC, but no charge under this Section was framed and the accused had been tried only for an offence punishable u/s 376 IPC.

Section 375 of the IPC reads as follows:

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.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent, when, at the time of giving such consent, by reason or unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under sixteen years of age.

When the sexual intercourse is with the consent of a lady, who is more than 16 years of age, then to amount to rape, conditions thirdly, fourthly or fifthly must be satisfied. There is no allegation that the prosecutrix or any person in whom she was interested was put under fear of death or hurt. Condition fourthly will also not apply because, admittedly, as per the statement of the prosecutrix, she did not believe that the accused was her husband, though, according to her, he had promised to marry her. Condition fifthly is also not applicable since there is no unsoundness of mind or intoxication or administration of any unwholesome substance. The prosecutrix willingly had sexual intercourse with the accused and even if a promise of marriage was held out, this would not amount to rape. In view of the above discussion, we find no merit in the appeal and the same is rejected. The bail bonds furnished by the accused shall stand discharged.