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Non-REPORTABLE

              IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 13  OF 2016 (Arising out of SLP(Crl.) No.4896 of 2015)

TILAK RAJ                         … APPELLANT Versus

THE STATE OF HIMACHAL PRADESH     … RESPONDENT

J U D G M E N T  

V. GOPALA GOWDA, J.

Leave granted.

2.2. This  criminal  appeal  is  directed  against  the  

impugned judgment and order dated 06.01.2015 passed  

by the High Court of Himachal Pradesh at Shimla in  

Criminal Appeal No. 369 of 2012 whereby it has partly  

allowed  the  said  Criminal  Appeal  filed  by  the  

respondent-State and has upheld the acquittal order

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passed by the trial court in favour of the appellant  

herein for the offence punishable under Section 376  

of Indian Penal Code (for short “IPC”). However, it  

has convicted the appellant for offences punishable  

under Sections 417 and 506 part I of IPC but instead  

of  imposing  sentence  on  the  appellant  for  the  

aforesaid offences, vide order dated 17.03.2015 the  

High Court has released him under Section 4 of the  

Probation of Offenders Act, 1958 on his entering into  

a personal bond in the sum of Rs. 25,000/- with two  

sureties in the like amount.  

3.3. Brief facts of the case are stated hereunder to  

appreciate  the  rival  legal  contentions  urged  on  

behalf of the parties:  

On  06.01.2010,  the  Assistant  Sub-inspector  of  

Police (ASI), Chamba (H.P.) received a complaint from  

prosecutrix  through  the  office  of  Deputy  

Superintendent of Police (DSP), Shri. K.D. Sharma,  

Chamba (H.P). In the said complaint, it was alleged  

by  her  that  on  01.01.2010  she  was  raped  and  

physically assaulted by the appellant. It was also  

alleged  by  her  that  when  she  went  to  the  police

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station  to  register  her  complaint  regarding  the  

offence  of  rape  she  was  threatened  with  dire  

consequences by the appellant on phone. Allegation of  

sexual exploitation on the pretext of marriage was  

also made by her in the said complaint.  

4.4. On the basis of said written complaint FIR No. 6  

of 2010 was registered by the ASI under Sections 376,  

417 and 506 of IPC and investigation was conducted by  

the  investigation  officer.  After  investigation  a  

report  under  Section  173  of  Code  of  Criminal  

Procedure, 1973 was filed.  

5.5. The case of the prosecution is that the appellant  

developed intimacy with the prosecutrix (PW 2) about  

two years prior to the incident.  He allured her on  

the pretext of marriage. On 01.01.2010 the appellant  

sexually violated the person of prosecutrix in her  

residential accommodation in Karian, Chamba. At the  

same  time,  he  not  only  ravished  her  but  also  

physically assaulted her by slapping her and twisting  

her arm.

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6.6. On  the  next  day  i.e.,  on  02.01.2010,  the  

prosecutrix decided to approach the Police Station,  

Chamba to get FIR registered against the appellant  

for the offence of rape. However, at about 6 AM when  

she  reached  near  Police  Station  the  appellant  

threatened her against making any complaint or report  

about him to the police officials otherwise he would  

kill the prosecutrix. Thereafter, she did not make  

any complaint.

7.7. On the same day, the appellant met prosecutrix  

near  the  Regional  Hospital,  Chamba  and  offered  to  

take her to his home. He persuaded her not to lodge  

FIR against him and even promised in writing to marry  

her. He assured her that both of them would stay as  

husband and wife. However, instead of taking her to  

his  house  he  dropped  her  at  her  residence  with  a  

promise that he would return soon. The appellant did  

not return thereafter. Feeling cheated thereby, on  

the same day, she reported the matter to Sh. K.D.  

Sharma, DSP, Chamba.

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8.8. On  05.01.2010,  both  the  appellant  and  the  

prosecutrix were called in the office of DSP, wherein  

the appellant agreed in presence of DSP, Chamba and  

one Yoginder Mohan (PW 3) to marry the prosecutrix  

the next day i.e., on 06.01.2010. On 06.01.2010, when  

the prosecutrix along with her family came forward  

for solemnization of marriage, the appellant did not  

turn  up.  The  same  day  FIR  No.  06  of  2010  was  

registered against the appellant. He was booked for  

the offences punishable under Sections 376, 417 and  

506 of IPC.  

9.9. The Court of Sessions, Chamba in sessions trial  

no. 40 of 2010, after examination of the evidence on  

record, vide its judgment and order dated 30.04.2012  

acquitted the appellant-accused of all the charges  

levelled  against  him  by  giving  him  a  benefit  of  

doubt.

10.10. Aggrieved by the decision of the trial court, the  

respondent-State preferred Criminal Appeal No. 369 of  

2012 before the High Court of Himachal Pradesh, at  

Shimla urging various grounds and prayed for setting

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aside the judgment and order of acquittal passed by  

the trial court and prayed to  convict and sentence  

the  accused-appellant  for  the  charges  levelled  

against him.

11.11. The High Court partly allowed the said Criminal  

Appeal. It  upheld the acquittal order passed by the  

trial  court  in  favour  of  the  appellant  for  the  

offence punishable under Section 376 of IPC. However,  

it convicted him for the offences punishable under  

Sections 417 and 506 part I of IPC.  The High Court  

instead of imposing sentence on the appellant for the  

aforesaid offences released him under Section 4 of  

the Probation of Offenders Act, 1958 on his entering  

into a personal bond in the sum of Rs. 25,000/- with  

two local sureties in the like amount. Hence, this  

appeal.

12.12. Mr. Aditya Dhawan, the learned counsel for the  

appellant contended that the High Court has failed to  

appreciate  the  facts  of  the  case  in  actual  and  

correct  perspective  and  its  judgment  is  based  on  

surmises  and  conjectures.  Therefore,  the  order  of

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conviction and sentence is liable to be set aside by  

this Court in exercise of its appellate jurisdiction.

13.13. He  further  contended  that  the  High  Court  has  

partly set aside a reasoned judgment passed by the  

trial  court  without  proper  re-appreciation  of  

evidence on record and facts and circumstances of the  

case in hand. It was further submitted by him that in  

an appeal against acquittal, the interference by the  

Appellate Court is not warranted in the absence of  

perversity of the finding of fact in the judgment of  

the  trial  court.  Furthermore,  it  is  well  settled  

position  of  law  that  if  two  plausible  views  are  

possible  on  the  basis  of  evidence  on  record,  the  

appellate  court  shall  not  exercise  its  appellate  

jurisdiction  to  set  aside  the  order  of  acquittal  

unless the findings of the trial court on the charge  

of offences under Sections 417 and 506 Part I of IPC  

are found erroneous.

14.14. It was further contended by him that the High  

Court has failed to take note of important fact that  

there is a considerable and unexplained delay of five

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days  in  lodging  the  FIR  against  the  appellant.  

Further,  the  non-examination  of  crucial  witness  

namely  Sh.  K.D.Sharma,  DSP,  Chamba  to  whom  the  

alleged  incidence  was  first  reported  by  the  

prosecutrix certainly rendered the prosecution case  

doubtful. In view of the above, he submitted that the  

prosecution ought to have examined Sh. K.D.Sharma,  

DSP, Chamba who was a material witness. He further  

contended  that  the  High  Court  has  failed  to  

appreciate that the trial court was right in drawing  

an  adverse  inference  from  non-examination  of  a  

crucial witness in the case.

15.15. He  further  vehemently  contended  that  the  High  

Court has failed to appreciate certain facts, namely,  

the age of the prosecutrix at the time of incident  

was about 40 years i.e., approximately 10 years more  

than  that  of  the  appellant.  Further,  she  was  a  

government servant at the time of incident and in  

number  of  cases  she  was  appointed  as  protection  

officer under the Protection of Women from Domestic  

Violence Act, 2005. Further, the prosecutrix was in  

relationship with the appellant for about two years

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prior  to  the  alleged  incident.  All  the  aforesaid  

facts  render  the  prosecution  version  completely  

unbelievable that the appellant established physical  

intimacy with the prosecutrix on the false pretext of  

marriage. Therefore, the impugned judgment and order  

is liable to be set aside by this Court.

16.16. It was further contended by him that the evidence  

of the prosecutrix is not clear and specific and the  

same is suffering from material inconsistencies and  

contradictions  with  other  evidence  on  record.  He  

further  submitted  that  the  discrepancies  in  the  

evidence of the prosecutrix is incompatible with the  

credibility of his version is liable to be outrightly  

rejected by this Court.  

17.17. While  concluding  his  submissions  the  learned  

counsel submitted that there is no evidence on record  

to suggest that the appellant on the false pretext of  

marriage with the prosecutrix and in furtherance of  

his intention from the very beginning induced her to  

surrender to him for sexual intercourse. Further, the  

conviction  of  the  appellant  is  based  only  on  the

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testimony of the prosecutrix (PW 2), which in itself  

could not have been relied upon by the High Court in  

absence  of  any  corroboration.  Thus,  the  impugned  

judgment and order of the High Court is vitiated in  

law and is required to be set aside by this Court.

18.18. Per contra, Mr. Suryanarayana Singh, the learned  

Additional  Advocate  General  on  behalf  of  the  

respondent-State  sought  to  justify  the  impugned  

judgment and order passed by the High Court on the  

ground  that  the  same  is  well  founded  and  is  not  

vitiated in law. Therefore, no interference with the  

impugned  Judgement  and  Order  of  this  Court  is  

required in exercise of its appellate jurisdiction.   

19.19. We  have  carefully  heard  both  the  parties  at  

length and have also given our conscious thought to  

the material on record and relevant provisions of The  

Indian  Penal  Code  (in  short  “the  IPC”).  In  the  

instant case, the prosecutrix was an adult and mature  

lady of around 40 years at the time of incident. It  

is  admitted  by  the  prosecutrix  in  her  testimony  

before the trial court that she was in relationship

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with the appellant for the last two years prior to  

the incident and the appellant used to stay overnight  

at her residence. After a perusal of copy of FIR and  

evidence on record the case set up by the prosecutrix  

seems to be highly unrealistic and unbelievable.   

20.20. The evidence as a whole including FIR, testimony  

of  prosecutrix  and  MLC  report  prepared  by  medical  

practitioner  clearly  indicate  that  the  story  of  

prosecutrix  regarding  sexual  intercourse  on  false  

pretext  of  marrying  her  is  concocted  and  not  

believable. In fact, the said act of the Appellant  

seems to be consensual in nature. The trial court has  

rightly held thus:

“23. If the story set up by the prosecutrix  herself in the court is to be believed, it  does come to the fore that the two were in  a relationship and she well knew that the  accused was duping her throughout. Per the  prosecutrix, she had not succumbed to the  proposal  of  the  accused.  Having  allowed  access  to  the  accused  to  her  residential  quarter,  so  much  so,  even  having  allowed  him to stay overnight, she knew the likely  outcome of her reaction. Seeing the age of  the prosecutrix which is around 40 years,  it  can  be  easily  inferred  that  she  knew  what could be the consequences of allowing  a male friend into her bed room at night.

24.  The  entire  circumstances  discussed

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above and which have come to the fore from  the  testimony  of  none  else  but  the  prosecutrix,  it  cannot  be  said  that  the  sexual intercourse was without her consent.  The act seems to be consensual in nature.

25.  It  is  also  not  the  case  that  the  consent had been given by the prosecutrix  believing  the  accused’s  promise  to  marry  her. For, her testimony itself shows that  the entire story of marriage has unfolded  after  05.01.2010  when  the  accused  was  stated to have been summoned to the office  of the Dy. S.P. Prior to 05.01.2010, there  is  nothing  on  record  to  show  that  the  accused had been pestering the prosecutrix  for any alliance. The prosecutrix has said  a line in her examination-in-chief, but her  cross-examination shows that no doubt the  two were in relationship, but the question  of  marriage  apparently  had  not  been  deliberated upon by any of the two. After  the  sexual  contact,  come  talk  about  marriage  had  cropped  up  between  the  two.  Thus,  it  also  cannot  be  said  that  the  consent  for  sexual  intercourse  had  been  given  by  the  prosecutrix  under  some  misconception of marriage.”

21.21. As  far  as  conviction  of  the  appellant  under  

Sections 417 and 506 part I of IPC is concerned, a  

close scrutiny of evidence of the prosecutrix (PW 2)  

along  with  other  prosecution  witnesses  is  done  by  

this Court. Section 417 of IPC prescribes punishment  

for the offence of Cheating as defined under Section  

415 of IPC. Section 415 of IPC reads thus:  

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“415.  Cheating.—Whoever,  by  deceiving  any  person, fraudulently or dishonestly induces  the person so deceived to deliver any prop- erty to any person, or to consent that any  person shall retain any property, or inten- tionally induces the person so deceived to  do or omit to do anything which he would  not do or omit if he were not so deceived,  and  which  act  or  omission  causes  or  is  likely to cause damage or harm to that per- son in body, mind, reputation or property,  is said to “cheat”. Explanation.—A dishon- est  concealment  of  facts  is  a  deception  within the meaning of this section.”

The ingredients required to constitute the offence of  

Cheating have been discussed by this Court in the  

case of Ram Jas v.State of U.P.1 as under:

“(i) there should be fraudulent or dishonest  inducement of a person by deceiving him; (ii)(a)  the  person  so  deceived  should  be  induced  to  deliver  any  property  to  any  person, or to consent that any person shall  retain any property; or (b)  the  person  so  deceived  should  be  intentionally induced to do or omit to do  anything which he would not do or omit if he  were not so deceived; and (iii) in cases covered by (ii)(b), the act or  omission should be one which causes or is  likely to cause damage or harm to the person  induced  in  body,  mind,  reputation  or  property.”

A careful reading of evidence on record clearly shows  

that there is no evidence against the appellant from  

which it can be conclusively inferred by this Court  1

 (1970) 2 SCC 740

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that there was any fraudulent or dishonest inducement  

of the prosecutrix by the appellant to constitute an  

offence under Section 415 of IPC. For conviction of  

the Appellant for above said offence, it is important  

that all the necessary ingredients constituting an  

offence under the said Section must be proved beyond  

reasonable doubt. In the instant case, the appellant  

cannot  be  convicted  for  the  offence  of  cheating  

punishable  under  Section  417  of  IPC  as  the  

prosecution has failed to prove all ingredients of  

the said offence beyond reasonable doubt.

22. Further, Section 506 of IPC prescribes punishment  

for the offence of criminal intimidation as defined  

under Section 503 of IPC. Section 503 of IPC reads  

thus:

“503.  Criminal  intimidation.—Whoever  threatens  another  with  any  injury  to  his  person, reputation or property, or to the  person  or  reputation  of  any  one  in  whom  that person is interested, with intent to  cause  alarm  to  that  person,  or  to  cause  that person to do any act which he is not  legally bound to do, or to omit to do any  act which that person is legally entitled  to  do,  as  the  means  of  avoiding  the  execution of such threat, commits criminal  intimidation.  Explanation.—A  threat  to  injure  the  reputation  of  any  deceased  person  in  whom  the  person  threatened  is

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interested, is within this section.”

A  reading  of  evidence  on  record  in  the  light  of  

aforesaid legal provision shows the insufficiency of  

evidence to hold the conviction of the appellant for  

the offence of criminal intimidation punishable under  

Section 506 part I of IPC.  

23. From the aforesaid, it is clear that the evidence  

of the prosecution is neither believable nor reliable  

to  bring  home  the  charges  leveled  against  the  

appellant. We  are  of  the  view  that  the  impugned  

judgment and order passed by  the High Court is not  

based on a careful re-appraisal of the evidence on  

record by the High Court and there is no material  

evidence  on  record  to  show  that  the  appellant  is  

guilty  of  the  charged  offences  i.e.,  offence  of  

cheating  punishable  under  Section  417  of  IPC  and  

offence  of  criminal  intimidation  punishable  under  

Section 506 part I of IPC.

24.  For  the  reasons  stated  supra,  this  appeal  is  

allowed and we set aside the impugned judgment and  

order of conviction and sentence passed by the High

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Court  against  the  appellant  for  the  offences  

punishable under Sections 417 and 506 part I of IPC.  

The  appellant  is  acquitted  of  all  the  charges  

levelled against him.     

                             ……………………………………………………CJI.                            [T.S. THAKUR]  

                          …………………………………………………………J.                   [V. GOPALA GOWDA]

New Delhi, January 6, 2016