State of Himachal Pradesh
Vs. Shree Kant Shekari [2004] Insc 539 (13 September 2004)
Arijit Pasayat & Prakash
Prabhakar Naolekar Arijit Pasayat, J.
The factual matrix of this appeal is unfortunately related to sordid and
obnoxious incidents where the respondent (hereinafter referred to as 'accused')
who at the relevant point of time was working as a teacher gratified his
animated passions and sexual pleasures by having carnal knowledge of his
student, a girl of tender age. The result was that the sacred relation of
teacher and his pupil was besmirched. As observed by this Court in Madan Gopal
Kakkad v. Narain Dubey and Anr. (1992 (2) Crimes 168) such offenders are menace
to the civilized society.
The State of Himachal Pradesh is in appeal against the judgment of a learned
Single Judge of the Himachal Pradesh High Court directing acquittal of the
accused who faced trial for alleged commission of offences punishable under
Sections 376 and 506 of the Indian Penal Code, 1860 (in short the 'IPC'). The
trial Court i.e. the Sessions Court, Kinnaur had convicted and sentenced him to
undergo imprisonment for 7 years and a fine of Rs.2,000/- for the first offence
and one year and a fine of Rs.2,000/- for the second offence. In addition, the
accused was directed to pay compensation of Rs.10,000/- to the prosecutrix.
Sexual violence apart from being a dehumanizing act is an unlawful intrusion
on the right of privacy and sanctity of a female. It is a serious blow to her
supreme honour and offends her self-esteem and dignity it degrades and
humiliates the victim and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist not only causes
physical injuries but more indelibly leaves a scar on the most cherished
possession of a woman i.e. her dignity, honour, reputation and not the least
her chastity. Rape is not only a crime against the person of a woman, it is a
crime against the entire society. It destroys, as noted by this Court in Shri
Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire
psychology of a woman and pushes her into deep emotional crisis. It is a crime
against basic human rights, and is also violative of the victim's most
cherished of the Fundamental Rights, namely, the Right to Life contained in
Article 21 of the Constitution of India, 1950 (in short the 'Constitution') The
Courts are, therefore, expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge, in our opinion, is a better statutory
armour in cases of crime against women than long clauses of penal provisions,
containing complex exceptions and provisos.
We do not propose to mention name of the victim. Section 228-A of IPC makes
disclosure of identity of victim of certain offences punishable. Printing or
publishing name of any matter which may make known the identity of any person
against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is
alleged or found to have been committed can be punished. True it is, the
restriction, does not relate to printing or publication of judgment by High
Court or Supreme Court.
But keeping in view the social object of preventing social victimization or
ostracism of the victim of a sexual offence for which Section 228-A has been
enacted, it would be appropriate that in the judgments, be it of this Court,
High Court or lower Court, the name of the victim should not be indicated. We
have chosen to describe her as 'victim' in the judgment. (See State of Karnataka
v. Puttaraja (2003 (8) Supreme 364) Prosecution version as unfolded during
trial is essentially as follows:
On 28.5.1993 the accused Shree Kant asked the victim who was his student of
class 4 to wait after school hours for solving a question, while he allowed
other students to go. The victim remained in the class room when the accused
bolted the door from inside and made the victim to lie on the floor and
forcibly committed sexual intercourse with her.
She kept refusing, wept and cried. However, since the doors of the room were
closed, none could hear her cries. He then threatened her that if she dared to
narrate the incident to anyone, he would throw her into the river. Being
threatened she did not disclose this fact to any person.
Few days after the first incident the accused had taken her and three other
students to Chuha Bagh for cleaning his room. The accused sent the other three
students out of the room and kept her inside the room. He bolted the door of
the room and made her lie on the floor and committed sexual intercourse with
her again.
In September, 1993 the victim stopped going to school. As she regularly
complained of stomach ache, her mother took her to Rampur Hospital where after
examination by Doctor (PW-1), mother of the victim learnt that she was
pregnant. On enquiry by her mother, the victim disclosed to her mother that her
conception was due to sexual intercourse by the accused. After returning to the
village, mother of the victim discussed the matter with her husband and then
disclosed the incident to Krishna, a member of Gram Panchayat who suggested to
report the matter to the police.
On 20.11.1993, the victim lodged a report at police station, Rampur. On the
basis of such report a case under Section 376 and 506 IPC was registered vide
FIR No.365/1993 (Ex.PW3/A).
During the course of investigation the victim (PW-3) was medically examined
on 20.11.1993 at 4.00 p.m. Such medical examination was carried out by doctor
(PW-1) of Refural Hospital, Rampur. In her opinion her period of gestation was
28 weeks.
On the completion of investigation, charge sheet was placed and matter was
taken up for trial. Twelve witnesses were examined to further the prosecution
version. The key witnesses were the victim herself who was examined as PW-3,
her mother (PW-4), father (PW-5) and other witnesses who had spoken about the
age of the victim. Placing reliance on the evidence of the victim the trial
Court found the accused guilty, convicted and sentenced him as aforesaid.
The accused questioned his conviction and sentence imposed before the High
Court. A learned Single Judge by the impugned judgment set aside the judgment
of the trial Court and directed acquittal.
Learned counsel for the appellant-State submitted that the High Court has
failed to analyse the factual and the legal position in the proper perspective
and has kept out of consideration relevant matters and drawn the presumptuous
conclusions and, therefore, the judgment is to be set aside. There is no
appearance on behalf of the accused in spite of service of notice.
The factors which seem to have weighed with the High Court are (i) the age
of the victim, which according to the High Court was more than 16 years; (ii)
no evidence has been placed by the prosecution to show that the victim had not
consented to the act; and (iii) the time of alleged rape as given by the victim
and her mother was improbabilised by the medical evidence. A particular
reference was made to the fact that a child was born on 10.4.1979 and if the
alleged rape has been committed during the period indicated by the victim and
her mother the same would have been altogether different periods. The delay in
lodging the first information report was also highlighted to attach
vulnerability to the prosecution case.
We shall first deal with the question of age. The radiological test
indicated age of the victim between 15 to 16= years. The school records were
produced to establish that her date of birth was 10.4.1979. The relevant
documents are Ex.PW6/A to PW6/C. The High Court was of the view that these
documents were not sufficient to establish age of the victim because there was
another document Ex.PW7/A which according to the High Court did not relate to
the victim. Merely because one document which was produced by the prosecution
did not, according to the High Court relate to the victim that was not
sufficient to ignore the evidentiary value of Ex.PW6/A to Ex.PW6/C.
These were records regarding admission of the victim to the school and her
period of study. These documents unerringly prove that the date of birth of the
victim as per official records was 10.4.1979. Therefore, on the date of
occurrence and even when the FIR was lodged on 20.11.1993 she was about 14
years of age. Therefore, the question of consent was really of no consequence.
Even otherwise the High Court seems to have fallen in grave error in coming
to the conclusion that the victim has not shown that the act was not done with
her consent. It was not for the victim to show that there was no consent.
Factually also the conclusion is erroneous right from the beginning that is
from the stage when the FIR was lodged and in her evidence there was a
categorical statement that the rape was forcibly done notwithstanding protest
by the victim. The High Court was therefore wrong in putting burden on the
victim to show that there was no consent. The question of consent is really a
matter of defence by the accused and it was for him to place materials to show
that there was consent. It is significant to note that during cross examination
and the statement recorded under Section 313 of the Code of Criminal Procedure,
1973 (in short the 'Code') plea of consent was not taken or pleaded. In fact in
the statement under Section 313 of the Code the plea was complete denial and
false implication.
The High Court has also committed error in making hypothetical calculations
regarding dates to doubt the testimony of the victim and her mother. What the
witnesses had stated were approximate dates or periods and not that they were
to be reckoned with exactitude. The victim is not an intelligent girl as the
evidence on record shows. She passed out Class 3 on the third attempt. Her
mother, a rustic woman is practically illiterate. To examine their evidence
with microscopic approach would be an insult to justice oriented judicial
system. It would be totally detached from the realities of life.
The High Court has also disbelieved the prosecution version for the
so-called delay in lodging the FIR. The prosecution has not only explained the
reasons but also led cogent evidence to substantiate the stand as to why there
was delay. The trial Court in fact analysed the position in great detail and
had come to a right conclusion that the reasons for the delay in lodging the
FIR have been clearly explained.
The unusual circumstances satisfactorily explained the delay in lodging of
the first information report. In any event, delay per se is not a mitigating
circumstance for the accused when accusations of rape are involved. Delay in
lodging first information report cannot be used as a ritualistic formula for
discarding prosecution case and doubting its authenticity. It only puts the
court on guard to search for and consider if any explanation has been offered
for the delay. Once it is offered, the Court is to only see whether it is
satisfactory or not.
In a case if the prosecution fails to satisfactory explain the delay and
there is possibility of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor.
On the other hand satisfactory explanation of the delay is weighty enough to
reject the plea of false implication or vulnerability of prosecution case. As
the factual scenario shows, the victim was totally unaware of the catastrophe which
had befallen to her. That being so, the mere delay in lodging of first
information report does not in any way render prosecution version brittle.
These aspects were highlighted in Tulshidas Kanolkar v. State of Goa (2003 (8)
SCC 590).
The High Court by hypothetical calculations has concluded that there were
discrepancies and has come to the presumptuous conclusion on mere surmises and
conjectures that there was unexplained delay in lodging the FIR. In view of the
above, conclusions of the High Court are not to be sustained.
It was also pleaded by the accused before the High Court which seems to have
weighed regarding absence of any corroboration to the victim's evidence.
It is well settled that a prosecutrix complaining of having been a victim of
the offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted without
corroboration in material particulars. She stands at a higher pedestal than an
injured witness. In the latter case, there is injury on the physical form,
while in the former it is physical as well as psychological and emotional.
However, if the court on facts finds it difficult to accept the version of the
prosecutrix on its face value, it may search for evidence, direct or circumstantial,
which would lend assurance to her testimony. Assurance, short of corroboration
as understood in the context of an accomplice would suffice.
The victim has categorically stated that she was afraid of the accused who
was her teacher and the threats given by him to the extent that she would be
put to physical harm if she spoke about the incident to anybody. The stand of
the accused that he was falsely implicated because brother of the victim was
not successful in the examination and therefore, his family had grudge against
the accused is too swallow to be accepted. The incident which involved the
accused and mother and brother of the victim took place about a decade back.
There is not even remote possibility of the same being the foundation for false
implication. In any event no girl of a tender age and her parents would like to
jeopardize her entire future by falsely implicating a person alleging forcible
sexual intercourse.
Looked at from any angle, judgment of the High Court is indefensible and the
same is accordingly set aside. The order of the trial Court is restored.
Accused shall surrender to custody forthwith to serve remainder of sentence.
The appeal is allowed.
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