1 Neutral Citation No. ( 2025:HHC:15482 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 271 of 2014 Reserved on: 13.05.2025 Decided on: 23.05.2025. _________________________________________________________ State of Himachal Pradesh …..Appellant Versus Nitin Sharma and others ……Respondents _________________________________________________________ Coram Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? _____________________________________________________ For the appellant: Mr. Ramakant Sharma, Ms.Sharmila Patial, Mr. Sushant Kaprate, Additional Advocates General & Mr. Raj Negi, Deputy Advocate General. For the respondents: Mr. Bhupinder Pathania, Advocate. Sushil Kukreja, Judge The instant appeal has been preferred by the appellant/ State under Section 378 of the Code of Criminal Procedure (Cr.PC) against the judgment of acquittal dated 31.07.2013, passed by the learned Additional Sessions Judge(I), Kangra at Dharamshala, HP, in Sessions Case No.5/2013, whereby accused Nitin Sharma (respondent No.1 herein) was acquitted for commission of the offences under Sections 362, 366-A, 376, 342 read with Section 34 of the Indian Penal Code (for short “IPC”), whereas, accused persons Swarup Sharma and Sunita (respondents No.2 & 3 herein, respectively) were acquitted for 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Neutral Citation No. ( 2025:HHC:15482 ) commission of the offences under Sections 368 & 342 read with Section 34 of IPC. 2. Brief facts giving rise to the instant appeal, as per the prosecution story, are that on 26.09.2012, the complainant i.e. father of the prosecutrix(name withheld) lodged a complaint to the police to the effect that his daughter (name withheld), who was studying in 10+1, was missing from the house since 25.09.2012. whereas after taking meals on 24.09.2012,she had gone to sleep in her room at around 10.30 p.m. The complainant alongwith his relatives kept on searching her, but they could not find any clue about her, however, later on the complainant found a mobile No.98179-58105 written on her book in the name of Monu Sharma and when he contacted him (Monu Sharma) on the aforesaid number, he did not disclose his correct address and used to disconnect/switch-off the phone. The complainant suspected that his daughter might have been enticed by said Monu Sharma to run away with him. Thereafter, the complainant reported the matter to the police on 26.09.2012, on the basis of which, FIR No.73/2012 dated 26.09.2012, under Sections 363 and 366-A of IPC came to be registered. During the course of investigation, the police prepared the spot map, obtained the records relating to date of birth of the prosecutrix and recorded the statements of the witnesses.During the course of the investigation, the prosecutrix as well as her mother visited the police station on 30.09.2012, where the prosecutrix got her 3 Neutral Citation No. ( 2025:HHC:15482 ) statement recorded under Section 161, Cr.P.C., stating therein that she was forcibly dragged by accused Nitin Sharma from Guler by getting her mouth gagged and he took her to his house in a vehicle and confined her there on 25.09.2012 in presence of his parents, i.e. accused persons Swarup Chand and Sunita Devi and accused Nitin also subjected her to illicit intercourse without her consent. On 26.09.2012 accused Suntia Devi, mother of accused Nitin Sharma, by way of an excuse made accused Nitin and the prosecutrix to board a van of one Tilak Raj by projecting that the prosecutrix was daughter of her sister and accused Nitin was going to Palampur to leave her at the house of his maternal aunt. Thereafter, accused Nitin took her to the house of his relative at Palampur, etc. On 28.09.2012 accused Nitin took her to Mandi in a bus and she stayed with him in the house of his relatives, where also he committed rape upon her without her consent. From Mandi, she escaped from the house of accused Nitin's relative on the pretext that she had to go to bathroom in the morning hours and thereafter she took a bus to Dehra via Hamirpur. On reaching Dehra Bus Stand, she made a telephone call to her mother, who took her to her house in a vehicle and then she narrated the entire episode to her parents. On the next day, she alongwith her parents went to police station Haripur and thereafter, the police took her to the hospital to get her medically examined, but she refused to conduct her internal as well as external examination before the Medical Officer. After 4 Neutral Citation No. ( 2025:HHC:15482 ) completion of the investigation, the police presented the charge-sheet before the learned Trial Court. 3. The prosecution, in order to prove its case, examined ten witnesses. Statements of the accused persons under Section 313, Cr.PC were recorded, wherein they pleaded not guilty and claimed trial. In their defence, no evidence was led by the accused persons. 4. The learned Trial Court, vide impugned judgment dated 31.07.2013, acquitted all the accused persons of the charges framed against them, hence, the instant appeal preferred by the appellant- State. 5. The learned Additional Advocate General contended that the learned Trial Court has appreciated the evidence on record in a slip-shod and perfunctory manner. 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 counsel for the respondents/ accused persons contended that the impugned judgment has been passed by the learned Trial Court after proper appreciation of both facts and law. He further contended that the learned Trial Court has correctly appreciated the evidence in its true perspective and the impugned judgment does not require any interference by this Court. Therefore, he 5 Neutral Citation No. ( 2025:HHC:15482 ) submitted that the instant appeal, which sans merits, be dismissed. 7. We have heard learned Additional Advocate General for the appellant-State as well as learned counsel for the respondents and also 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 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 findings 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. 9. It is also settled that 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 6 Neutral Citation No. ( 2025:HHC:15482 ) serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. 10. Now reverting back to the facts of the case on hand. To substantiate the charges framed against the respondents/accused persons and to bring home the guilt of the accused persons, the prosecution has examined as many as ten witnesses. However, the case of the prosecution mainly rests upon the statements of PW-1 complainant/father of the prosecutrix, PW-2, the prosecutrix, PW-3 Dr. Anita Mahajan and PW-4 Dinesh Kumar, Panchayat Secretary. 11. The complainant, who is the father of the prosecutrix, while appearing in the witness-box as PW-1, deposed that on 24.09.2012 his daughter, aged about 17 years, was sleeping in her room at 10.30 pm, but she was not found there in the morning at about 7:00 am on 25.09.2012. They inquired about her in the evening and came to know that accused Nitin was also missing from his house on said date. When she could not be found, they lodged FIR in police station Haripur on 26.09.2012 and thereafter they came to know that accused Nitin had enticed his daughter with a false promise to marry her. On 28.09.2012 the prosecutrix made a telephone call to his wife that she was present at the bus stand and then they hired a taxi and took her back to their house, who told them that she was kept by accused at his residence for about one night and one day and he committed rape on her against her will. The parents of accused were also present in their house when his 7 Neutral Citation No. ( 2025:HHC:15482 ) daughter was taken by the accused to his house and they were also aware about criminal act done by accused Nitin in relation to their daughter. She also told them that she was taken by accused alongwith him to Palampur, Nagrota Bagwan, Chamunda, Dehra and Jawalamukhi & other places. This witness further stated that thereafter they went to the police station, where the statement of prosecutrix was recorded by the Investigating Officer. 12. The prosecutrix, while appearing in the witness-box as PW-2, deposed that on 25.09.2012 she went to Guler to get the book from her friend. She left her house at about 7 am and when she reached near the house of accused Nitin, he stopped her on the pretext that he had some work with her. Thereafter, he forcibly took her inside his house and then to his room. He gagged her mouth by putting his hands on her mouth. On the intervening night of 25.09.2012/ 26.09.2012, he forcibly committed rape upon her without her consent and his parents were also present in the house. She tried to raise hue and cry, but the accused had put his hand on her mouth, due to which, she could not raise cries. Thereafter on 26.09.2012 at about 3 am, accused Nitin took her in a newspaper van towards Kangra, then to Palampur and thereafter to Chamunda in a private bus. She stayed with him at Chamunda on 26.9.2012 and 27.9.2012 in the house of his relatives. There also accused committed rape upon her without her consent. On 28.09.2012 accused took her to Mandi in a bus and she 8 Neutral Citation No. ( 2025:HHC:15482 ) stayed with him in the house of his relatives. There also he committed rape upon her without her consent. From Mandi, she escaped from the house of accused Nitin's relative on the pretext that she had to go to bathroom in the morning hours and she took a bus to Dehra via Hamirpur and on reaching Dehra Bus stand, she made a telephone call to her mother, who took her to her house in a vehicle. Thereafter, she narrated the entire episode to her parents. On next day, she alongwith her parents went to police station Haripur, where her father lodged FIR against the accused persons. The parents of accused told her that she should marry accused Nitin first and thereafter her parents should be informed. Police took her to the hospital, however, she refused to get herself medically examined. 13. PW-3 Dr. Anita Mahajan deposed that the prosecutrix was produced before her on 30.09.2012 at 7.15 pm for her medical examination in a rape case, but she refused to give her consent for external and internal medical examination. She recorded the statement of the prosecutrix alongwith her mother and thereafter, she issued MLC Ext. PW3/A. 14. We have carefully scrutinized the entire evidence on record and from the perusal of the material available on record, we are of the considered view that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. 9 Neutral Citation No. ( 2025:HHC:15482 ) 15. The alleged incident pertains to the year 2012 and at that time, the age of discretion under the Act was 16 years as the amended Act 13 of 2013 came into force only w.e.f. 03.02.2013. Section 375, IPC, which defines ‘rape’, before substitution by Act 13 of 2013, stood as under:- “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.— 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 of 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.” 16. So far as the age of the prosecutrix is concerned, PW-4 Dinesh Kumar, Panchayat Secretary, deposed that as per Panchayat record, the date of birth of the prosecutrix was 08.01.1996 and he had issued her birth certificate Ext. PW4/B. Thus, at the time of the alleged incident, the age of the prosecutrix was 16 years, 9 months, 15 days. Hence, she was of the age of discretion at the time of alleged incident. 10 Neutral Citation No. ( 2025:HHC:15482 ) 17. 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 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. Corroboration of the testimony of the Prosecutrix as the condition for judicial reliance is not requirement of law but a guidance of prudence under the given facts and circumstances. 18. In Krishan Kumar Malik vs. State (2011) 7 SCC 130, the 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." 11 Neutral Citation No. ( 2025:HHC:15482 ) 19. In Narender Kumar vs. State (NCT of Delhi), 2012 (7) SCC 171, it has been observed as under: “20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix is a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.” 20. 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… … …” 21. It is also settled position in law that even in a case of rape, the onus is always on the prosecution to prove, affirmatively, each ingredient of the offence it seeks to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution case has to stand on its own legs and cannot 12 Neutral Citation No. ( 2025:HHC:15482 ) take support from the weakness of the case of defence.The Hon'ble Supreme Court in Tukaram and another Vs. The State of Maharashtra, (1979) 2 SCC 143 has held as under:- "16. Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375 of the Penal Code, 1860 were present in the case of the sexual intercourse...." 22. In Uday v. State of Karnataka, (2003) 4 SCC 46, the Hon'ble Supreme Court has held as under:- "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them." 23. 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 13 Neutral Citation No. ( 2025:HHC:15482 ) prosecutrix would always be true or without any embellishment. 24. In the background of the aforesaid legal position, when we consider the case in hand, we are of the view that if the evidence of the prosecutrix is read and considered in totality of the circumstances along with other evidence on record, in which the offence is alleged to have been committed, her deposition does not inspire confidence. In her cross-examination, she admitted that the house of accused Nitin Sharma was situated in the village and there were houses of the inhabitants near the house of accused. She did not raise hue and cry since accused Nitin had threatened her with dire consequences in case she raised any hue and cry. She did not know the exact place at Mandi where accused made her to stay in a house of his relatives. She further admitted that she did not lodge any complaint to the police or to some other persons during the journey that she was threatened by accused Nitin not to disclose about the incident to any person. She also admitted that she did not disclose to the police the name of her girl friend and that accused Nitin made her to stay at Chamunda. She admitted that the house of accused Nitin was 3/4 KM away from her house. 25. Thus the entire cross-examination of the prosecutrix reveals that she accompanied accused Nitin at her own and did not disclose about the incident to the police or any other person during her stay with accused Nitin Sharma. 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 Nitin at his place of residence as well as at other places. She 14 Neutral Citation No. ( 2025:HHC:15482 ) 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 Nitin as alleged by her. She had remained in the company of accused Nitin for many days without any protest and also came in physical contact with him several times. The evidence on record indicates that the physical relationship between accused Nitin and the prosecutrix was consensual. The prosecutrix, being a willing party to go and stay with accused Nitin as per her own wish, in such a situation culpability of the accused persons has not been established. 26. In view of what has been discussed hereinabove, no interference in the judgment of acquittal, dated 31.07.2013, passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala, HP, in Sessions case No. 5/2013, 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 May 23, 2025 (VH)