Highly Unimaginable That Well Built Lady Of 40 Years Would Not Show Any Resistance: Himachal Pradesh High Court Upholds Acquittal In Rape Case

The appeal before the High Court was preferred by the appellant/State under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal whereby the accused (respondent) was acquitted under Sections 376 and 506 of the Indian Penal Code.

The Division Bench of Justice Vivek Singh Thakur and Justice Sushil Kukreja held, “In her crossexamination, she deposed that the accused made her lie on the bed and while sexually molesting her, he kept on gagging her mouth with one hand and with other hand, he had torn her clothes. However, it appears to be highly unimaginable that a young well built lady of 40 years would not show any resistance when the accused was tearing her clothes and was sexually molesting her. In the given circumstances, the accused could not have succeeded in sexually assaulting the prosecutrix, especially when both the hands of the prosecutrix were free for resistance."

Deputy Advocate General J.S. Guleria represented the Appellant, while Advocate Y.P. Sood represented the Respondent.

Factual Background

In 2013, the prosecutrix/victim got a complaint lodged at the Police Station alleging that one day, while her husband and children were away, she found the accused sitting on a cot in the verandah of her house. She went inside the room to bring water for him, but in the interregnum, the accused also entered the room and caught hold of her and laid her on the double bed. As per the prosecutrix, the accused had torn her clothes and committed rape. The accused also threatened her with dire consequences in case she disclosed the incident to anyone. The prosecutrix narrated the incident to her husband when he returned home, but she could not report the matter to the police due to fear.

Upon the complaint, so made by the prosecutrix, the police registered a case against the accused, and the investigation commenced. The Trial Court acquitted the accused of the offences charged against him. Thus, the appeal came to be preferred by the appellant-State.

Reasoning

Dealing with the aspect of review, the Bench stated, “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 finding of acquittal recorded by the trial Court. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused.”

Highlighting that rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere, the Bench held, “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, however, if the Court 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. 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.”

“The Hon'ble Supreme Court has observed in a catena of decisions that the Court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature to throw out an otherwise reliable prosecution case. If the statement of the prosecutrix is of sterling quality and inspires confidence, then corroboration from other evidence need not be sought, but where the statement of the prosecutrix is shaky and does not inspire confidence then corroboration should be sought from other evidence collected during investigation”, it added.

Coming to the facts of the case, the Bench noted, “In the background of the aforesaid legal position, 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.” Referring to the entire crossexamination of the prosecutrix, the Bench noted that the same revealed her conduct at the time of the incident and after the incident as quite unnatural. In her cross-examination, she admitted that there were a number of other houses near her house, but, neither did she raise any hue and cry nor raised her voice calling for help. As per the prosecutrix, the accused had gagged her mouth with one of his hands, but such fact was missing both in the FIR as well as in her complaint.

The medical evidence showed that the prosecutrix did not sustain any injury on any part of her body and there was no mark of any injury or violence on her person at the time of her medical examination, which further fortified the fact that she did not resist the alleged act done by the accused. The version of the prosecutrix that the accused had torn her clothes also appeared concocted to the Bench as it was not possible for the accused to tear the clothes with one hand. “As per her own version, for the last 25 years she was acquainted with the accused and he was her cousin. In fact, it seems that the prosecutrix was consenting party to the alleged act and had it not been the case, she would have certainly raised hue and cry or cried for help or offered some resistance against the alleged act of the accused”, it added.

It was also not discernible as to why the prosecutrix refrained from informing her real sister, who used to reside only at a distance of 2 km from her house. “When the statement of the prosecutrix is carefully scrutinized, we find that the same is not of sterling quality and does not inspire confidence as it contains material inconsistencies and contradictions which affect the core of the prosecution case. After extensively examining the testimony of the prosecutrix (PW-1) and her deposition coupled with the deposition of her husband (PW-3), it can safely be held that the testimony of the prosecutrix does not at all inspire confidence and it is tainted with improvements, contradictions and embellishments and also seems unnatural on various aspects, thus, the same cannot be relied upon”, it held.

Thus, dismissing the appeal, the Bench directed the respondent to furnish bail bonds for Rs 50,000 with one surety in the like amount to the satisfaction of the Trial Court with the stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent on receipt of notice, would appear before the Supreme Court.

Cause Title: State of Himachal Pradesh v. Sunil Khan (Neutral Citation: 2025:HHC:31354-DB)

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