High CourtDivision Bench2008-08-28Appeal dismissed.

State of H.P. v. Suresh Kumar @ Chhotu

Case / Petition Number:Criminal Appeal No. 973 of 2002

Neutral Citation:[2008] 13 S.C.R. 1

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. ARIJIT PASAYAT
P. SATHASIVAM
AFTAB ALAM
Judgment Date: 2008-08-28
Court Decision / Holding: Appeal dismissed.
Final Disposition: Appeal dismissed.

Parties to the Case

Appellants / Petitioners

State of Himachal Pradesh

Respondents

Suresh Kumar @ Chhotu

Legal Representation & Advocates

Counsels for Petitioners

• Naresh K. Sharma
• Meenakshi Arora

Case Synopsis & Summary

This is an appeal under the Criminal Appellate Jurisdiction arising from a judgment of the Himachal Pradesh High Court, which had acquitted the respondent of offences under Sections 363, 366 and 376 IPC. The prosecution’s case, as unfolded at trial, is that on 23.3.1996 in Sadwan village the appellant and a co-accused abducted the prosecutrix, coerced her to accompany them, and forcibly brought her to various places culminating in a ceremony at a temple where she was allegedly compelled to marry the accused. She later alleges rape/sexual intercourse with the accused, and her affidavit indicating solemnization of marriage was attested by a lawyer. The mother reported the disappearance to police, and the prosecutrix was recovered and medically examined. Age-related evidence, including birth documents and an age certificate, formed a critical strand of the case, with the High Court highlighting inconsistencies and concluding that the prosecutrix appeared to be above 16 at the time of occurrence, thus limiting the effect of consent to the offences. The Sessions Judge had convicted the accused, but the High Court reversed. The Supreme Court, while acknowledging inconsistencies in documentary age evidence, upheld the High Court’s view that the prosecutrix accompanied the accused of her own accord and consented to the sexual acts. It held that if the prosecutrix were below 16, consent would be immaterial, but found no basis to disturb the High Court’s conclusions. The appeal was dismissed, leaving the acquittal intact, and appreciation was expressed for the Amicus Curiae.

Provisions of Law Cited

Indian Penal Code, 1860: Sections 363, 366, 368, 376Code of Criminal Procedure, 1973: Section 313Indian Penal Code, 1860: Section 109 read with Section 376Code of Criminal Procedure, 1973

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the prosecutrix’s testimony, though subject to inconsistencies, should not be rejected, and the documentary age evidence cannot be treated as decisive. It emphasizes that the prosecutrix accompanied the accused of her own accord and that consent to sexual acts would be immaterial only if the prosecutrix was under 16 years of age. While the High Court noted inconsistencies in documents regarding the prosecutrix’s birth, the documentary evidence should not overshadow oral testimony and medical findings suggesting possible sexual intercourse. The State argues that the age and consent questions require careful re-evaluation of the entire evidential matrix, including the affidavit and the medical examination, and urges that a conviction under the charged sections would be warranted if the age is properly established. The appellate court is urged to re-examine the weight of the prosecution evidence in light of the legal consequences of consent where the prosecutrix’s age could render consent immaterial.

Contentions of Respondents

The defence contends that the prosecutrix’s testimony is unreliable due to inconsistencies and the lack of a solid age determination. It argues that the prosecutrix willingly accompanied the accused, and the sexual acts were consensual, undermining the basis for conviction under the IPC sections cited. The defence also challenges the documentary age certificates as being unrelated to the prosecutrix and questions the reliability of the mother’s testimony and other circumstantial evidence. It maintains that the High Court’s acquittal was well-founded given the circumstances and should be upheld, asserting that the combination of inconsistent documentary evidence and the surrounding circumstances does not meet the standard required for conviction beyond reasonable doubt.

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Extracted Judgment Text

Exact text extracted from official judgment records.

_)'_ A {. _t_ [2008] 13S.C.R.1 ## STATE OF H.P. _v._ SURESH KUMAR @ CHHOTU (Criminal Appeal No. 973 of 2002) AUGUST 28, 2008 B [DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB ALAM, JJ] _Penal. Code, 1860:_ _ss. 36;3, 368 and 376_ - _Kidnapping and rape_ - _HELD:_[c ] _High Court has rightly concluded that accusations were not established and prosecutrix was more than 16 years of age at the time of occurrence_ - _Findings of High Court about age of prosecutrix cannot be said to be without any basis_ - _High Court was justified in its conclusions about the prosecutrix having_ D _accompanied the accused on her own and being a consenting party to the sexual acts._ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 973 _bf_ 2002 From the final Judgment and Order dated 5.11.2001 of the High Court of Himachal Pradesh at Shimla in Crl. Appeal No. 507 of 1999 E Naresh K. Sharma and Meenakshi Arora for the Appellant ,-1 " F The Order' of the Court was delivered by Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a learned Single Judge of the Himachal Pradesh High Court directing acquittal of the respondent (hereinafter referred to as the 'accused'). Learned Sessions Judge, Kangra G at Dharamshala had found the accused guilty of offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (in short 'IPC') and sentenced him to undergo rigorous imprisonment for seven years and two years and fine with default stipulation. H .. [2008] 13 S.C.R. SUPREME COURT REPORTS 2 l. f3 _r_ .~ ~ Ti;2 prosecution version as unfolded during trial is as fol- Prosecutrix (PW-2) daughter of Nirmala Devi (PW-1) and J:igar Nath (PW-3) was, on 23.3.1996 present in her house in viiiage Sadwan. The accused and lshwar Dass alias Sheru (who f3 was a co-accused before the trial court and will be referred to <is such hereafter) came to her house. Accused asked her to marry him. On her refusal, the accused and the said co-accused ' . t11reatened to kill her brother. They made her to accompany them at the point of a knife and was taken to different houses and .~ ~ finally to the house of Ashok Kumar (who was also a co-accuse before the trial court and is referred to as such hereafter). From there, she was brought to Kunalpathri temple for performing marriage with the accused. But she refused and the priests also refused to perform the marriage. The accused and the co-ac:J cused then took the prosecutrix to the Court premises at Dharamshala where she was forced to sign an affidavit regarding soleminazation of her marriage with the accused and such affidavit alongwith affidavit of the. accused tc the same effect were attested by RS.Rana, Advocate (PW-5). She was then E taken back to the house of co-accused Ashok Kumar at Shahpur where she siayed for five days and during this period, the accused subjected her to sexual intercourse. When the mother of the prosecutrix (PW-1) returned home from the fields, she found the prosecutrix missing and started F searching for her in the neighbourhood and also at her parents' house and finally reported the matter to the police on 26.3.1996 on the basis of which formal Ex. PWc 1/A was registered at Poe lice Station, Nurpur by AS! Sharif Mohammad (PW-10). The father of the prosecutrix (PW-3) who was, at the ma!erial time, G viorking at Kullu was informed about the occurrence whereupon !18 returned home: On the liasis of information received, the o::ilice aiongwith PW2 recovered the prosecutrix from the house cf co-accused Ashok Kumar vide memo Ex.P'vV3/A and she vi<;s hor.ded over to PW-2 vide memo Ex PW-/B. The prosecuh tnx •Nas got medically examined and Dr. D.R.Royal (PW12) who F h ·._ STATE OF H.P _v._ SURESH KUMAR @ CHHOTU [DR ARIJIT PASAYAT, J) 3 i "'( . ).. ( - i _---!_ -"'j examined her issued the MLC Ex.PW-12/B and opined that A the possibility of sexual intercourse qua the prosecutrix could not be ruled out. At the time of medical examination of the prosecutrix, PW12 took in possession the underwear which the prosecutrix was wearing at the relevant time and also collected vaginal swab, prepared the slides and after sealing, handed them B over to the police to get them analyzed from the Chemical Ex-aminer. After arrest, accused was also got medically examined and Dr. Praveen Bhardwaj who examined him vide MLC Ex.PW13/A opined that the accused was capable of performing sexual intercourse. At the time of medical examination, his c underwear was also taken in possession by PW13 and handed over to the police for chemical analysis. As per the report regarding chemical analysis of the aforesaid articles Ex.PX, nothing incriminating was found in the articles so analysed, except the underwear of the prosecutrix which was found stained with D human blood. During the course of the investigation, the police also took possession of the age certificate Ex.PW14/A of the prosecutrix and the abstract of the register Ex.PW14/B. On completion of the investigation, a charge sheet under Sections 363, 366, 368 and 376 IPC was submitted by the officer in E charge, Police Station, Nurpur against the accused and his coaccused. The accused abjured guilt and took the stand that he has been falsely implicated. The co-accused Ashok Kumar was tried in respect of a charge under Sections 368 and 109 read with Section 376 IPC and co-accused lshwar Dass @ Sheru was charged for offences relatable to Sections 363, 376 read with 34 and Section 109 read with Section 376. F _, In order to establish the accusations, fifteen witnesses were examined .. The accused and the co-accused were examined G under Section 313 of the Code of Criminal Procedure, 1973 (in short 'Code'). Learned Trial Judge acquitted the co-accused of the charges but convicted the accused and imposed sentences as aforesaid. H 4 SUPREME COURT REPORTS [2008] 13 S.C.R. A The High Court noted that there was inconsistency in the evidence of the prosecutrix. She appeared to have accompanied the accused of her own accord and the sexual intercourse alleged to have been committed was done with her consent. The stand of the prosecutrix was that as she was below 16 years B[of ][age, ][her consent, if ][any, ][was ][of ][no ][consequence. ][The ][High ] Court referred to the evidence of PWs. 1,2,3, and 14 and the documents relied upon i.e. the birth certificate. The High Court noted that those documents apparently were not relatable to the prosecutrix and therefore the date of birth indicated in the c[documents could ][not ][be ][that of ][the ][prosecutrix. ][It ][referred ][to ][the ] evidence of the mother. It was concluded that the documents could not be also relatable to the prosecutrix in view of the statement of the mother about her own age. That being so, the High Court held that the accusations were not established and the D[prosecutrix, ][as ][evident ][from ][the ][documents ][was ][more ][than ][16 ] years of age at the time of occurence. A _r_ \- In support of the appeal, learned counsel for the appel·· lant-State submitted that the evidence of the prosecutrix ought not to have been rejected. The documentary evidence, though E[there appear ][to ][be ][some ][inconsistencies ][in ][the ][documents ][as ] regards the name of the child born, and her caste in a village area should have been considered to be of no consequence. Learned Amicus Curiae supported the judgment of the High Court. F We find that the High Court was justified in its conclusions about the prosecutrix having accompanied the accused on her own and being a consenting party to the sexual acts. As rightly contended by learned counsel for the State, if the age of the G[prosecutrix ][was ][below ][16 ][years, ][the ][consent would ][be ][of ][no ] consequence. But the High Court's findings as regards the age of the prosecutrix cannot be said to be without any basis. The High Court has analysed the oral evidence and the documentary evidence to come to a conclusion that the date of birth of H[the prosecutrix ][as ][claimed ][by ][the ][prosecution ][has ][not ][been ] _>-_ "' ' STATE OF H.P. _v._ SURESH KUMAR 5 @ CHHOTU [DR. ARIJIT PASAYAT, J.] established. That being so, we find no merit in this appeal which A is accordingly dismissed. We record our appreciation for the assistance rendered by learned Amicus Curiae. > R.P. Appeal dismissed. B