STATE OF HIMACHAL PRADESHversusSANJAY KUMAR

                 [2025] 4 S.C.R. 1708 : 2025 INSC 561

                       State of Himachal Pradesh
                                   v.
                             Sanjay Kumar
                    (Criminal Appeal No(s). 595 of 2016)
                                 23 April 2025
                     [Ahsanuddin Amanullah and
                     Prashant Kumar Mishra,* JJ.]


                           Issue for Consideration
       Whether the High Court was justified in setting aside the conviction
       and sentence of the accused-A1 u/ss.363, 366, 376 and 201 r/w s.34,
       IPC and accused-A2 u/s.201 r/w s.34 and acquitting them.

                                  Headnotes†
       Penal Code, 1860 – ss.363, 366, 376, 201 r/w s.34 – High Court
       set aside the conviction and sentence of accused-A1 u/ss.363,
       366, 376 and 201 r/w s.34, IPC and accused-A2 u/s.201 r/w s.34
       and acquitted them – Correctness:
       Held: Acquittal not interfered with – FIR was lodged regarding
       the abduction of the Prosecutrix, there is no allegation of rape
       in the FIR – There is material contradiction in the statement of
       the Prosecutrix as to the date of commission of rape – Since A1
       was not with the Prosecutrix in the night of 31.03.2012 when she
       was in the house of co-accused-A2 and there is no allegation of
       rape against A2 in whose house she stayed on the next night, the
       High Court rightly held that the commission of rape by A1 is not
       proved – View taken by the High Court is plausible considering the
       evidence on record – Prosecution failed to establish the charges
       against the accused. [Paras 9-11]

                                  List of Acts
       Penal Code,1860; Code of Criminal Procedure, 1973.

                               List of Keywords
       Commission of rape not proved; Kidnapping; Acquittal not
       interfered with; Material contradiction in statement of prosecutrix;

* Author
[2025] 4 S.C.R.                                                             1709

                      State of Himachal Pradesh v. Sanjay Kumar


       No allegation of rape in the FIR; Section 164 of Criminal Procedure
       Code, 1973; Date of commission of offence; Medical evidence;
       DNA profile.

                                   Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       595 of 2016
       From the Judgment and Order dated 28.12.2015 of the High Court
       of Himachal Pradesh at Shimla in CRLA No. 4246 of 2013
       With
       Criminal Appeal No. 596 of 2016

                                 Appearances for Parties
       Advs. for the Appellant:
       Divyanshu Kumar Srivastava, Yash Jain, Ravi Bakshi,
       S. Gowthaman.
       Advs. for the Respondent:
       Sumesh Dhawan, Ms. Ankita Bajpai, Mrs. Vatsala Kak, Ms. Kholi
       Rakuzhuro, Mrs. Priya Puri, Raghav Dembla.

                          Judgment / Order of the Supreme Court

                                       Judgment

       Prashant Kumar Mishra, J.

1.     These appeals would call in question, the impugned Judgment of
       acquittal dated 28.12.2015 passed by the High Court of Himachal
       Pradesh at Shimla in Criminal Appeal No. 4246 of 2013 and Criminal
       Appeal No. 4273 of 2013 setting aside the conviction and sentence
       of accused/Sanjay Kumar under Sections 363, 366, 376 and 201
       read with Section 34 of the Indian Penal Code,1860,1 and accused/
       Chaman Shukla under Section 201 read with Section 34 IPC imposed
       by the Sessions Judge, Bilaspur (H.P.) in Sessions Trial No. 8/7 of
       2012 arising out of FIR No. 47 of 2012 dated 31.03.2012, registered
       at P.S. Barmana, District Bilaspur (H.P.).


1    (for short, ‘IPC’)
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2.   The prosecution case in brief is that on 30.03.2012, Parkash Chand
     (PW-5), father of the prosecutrix, was addressing religious story
     (‘Katha’) in Sri Naina Devi temple at Sohra Buins and his wife
     Shanta Sharma along with her daughter Tanu Sharma (PW-2) and
     the prosecutrix aged about 14 years (PW-13) also went to listen the
     Katha. During Katha, PW-2 asked the prosecutrix to take her son,
     aged about two years, to bed for sleeping in a room of the temple.
     After a long time, when the prosecutrix did not return, PW-2 went
     to the room where she found her son sleeping, but did not find
     the prosecutrix in the room. Upon this, PW-2 informed her in-laws
     and others and started searching for the prosecutrix but remained
     unsuccessful. They raised a suspicion that the accused/Sanjay Kumar
     had kidnapped the prosecutrix. PW-2 called her husband Narender
     Shail (PW-1) who made a complaint at the Police Station, Barmana,
     District Bilaspur and on that basis, FIR was registered.
2.2. On 01.04.2012, accused/Chaman Shukla along with the prosecutrix
     went to the Police Station Rampur, District Shimla and informed that
     he had found her walking on the road at Narkanda on 30.03.2012
     and brought her to his home. Upon production of the prosecutrix at
     Police Station, Rampur, a police party of Police Station Barmana,
     District Bilaspur along with relatives of the prosecutrix reached there
     and the prosecutrix was handed over to them by entering Rapat
     in the Rojnamcha at Police Station, Rampur. The accused/Sanjay
     Kumar was arrested on 04.04.2012 and the prosecutrix as well as
     accused/Sanjay Kumar were medically examined.
2.3. During the course of investigation, it was found that accused/Sanjay
     Kumar kidnapped the prosecutrix in his Alto Car bearing registration
     No. HP-24-8684 on 30.03.2012 and spent that night in the house
     of Jawala Devi (PW-6) at village Thaila Chakti, Tehsil Rampur,
     District Shimla where he allegedly committed rape on her. On the
     next day, the prosecutrix was kept in the house of accused/Chaman
     Shukla who threatened her to state that she came to Rampur of her
     own volition and further tried to mislead the investigating agency.
     PW-6 also handed over one shirt of the prosecutrix. Regarding the
     age of the prosecutrix, the investigating officer procured her birth
     certificate wherein her date of birth was recorded as 09.12.1997
     which is corroborated with the family register. On 07.04.2012, the car
     was seized along with one mobile phone having sim of Vodafone.
     On 11.04.2012, the prosecutrix was produced before the Judicial
[2025] 4 S.C.R.                                                       1711

               State of Himachal Pradesh v. Sanjay Kumar


     Magistrate, Bilaspur where her statement under Section 164 Cr.P.C.
     was recorded.
2.4. On completion of investigation, chargesheet was filed and, in
     course of trial, the prosecution examined 21 witnesses in support
     of the charges. The accused pleaded not guilty but did not lead any
     evidence in defence.
2.5. On the basis of evidence brought on record during the course of trial,
     the Trial Court convicted the accused/Sanjay Kumar for the subject
     offences and sentenced him to undergo rigorous imprisonment for
     7 years and to pay a fine of Rs. 20,000/- and accused/Chaman
     Shukla to undergo simple imprisonment for 01 year against which
     they preferred appeals before the High Court. The High Court has set
     aside the above conviction & sentence and resultantly the Criminal
     Appeals preferred by the accused/appellants have been allowed by
     the impugned Judgment. Hence, these appeals.
3.   We have heard learned counsel for the parties and perused the
     records. Learned counsel have taken us through the entire evidence
     on record.
4.   Mr. Divyanshu Kumar Srivastava, learned counsel appearing for
     the appellant/State would mainly rely upon the statement of the
     prosecutrix to prove the allegations against the accused as the
     prosecutrix was taken away by the accused/Sanjay Kumar without any
     obstruction from Naina Devi temple because of prior acquaintance.
     He further submits that the prosecutrix is naturally the most important
     witness beside other circumstantial evidence and the High Court
     has erroneously discarded the version of the prosecutrix on its face
     value. Her statement must be appreciated in the background of the
     entire case. He would submit that the testimony of the prosecutrix
     inspires absolute confidence and is sufficient on its own to sustain
     the conviction.
5.   Per contra, Mr. Sumesh Dhawan, learned counsel appearing for the
     respondents would submit that accused/Sanjay Kumar has been
     falsely implicated merely on suspicion of prior acquaintance with
     the prosecutrix whereas the prosecutrix had run away of her own
     will. He submitted that the prosecutrix had categorically stated that
     rape had been committed on her in the night of March 30, 2012,
     whereas the entries in DDR Ex. PW-21/A and PW-21/B establish
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     that she was with the other accused Chaman Shukla on that night
     and basing such inconsistencies the Trial Court had acquitted the
     co-accused Lekh Ram, whereas, the respondents herein were
     ordered to be convicted. He further argued that allegedly the rape
     was committed in the house of PW-6 (Jawala), who did not support
     the version of the prosecutrix. He would further contend that it was
     the specific case of the prosecution that the police had traced the
     prosecutrix by following her mobile phone through telephone tower
     location, whereas no such details were produced during the course
     of trial which attracts adverse inference against the prosecution. It
     is further argued that no DNA examination was conducted to match
     the semen of the accused with the semen allegedly recovered from
     the clothes of the prosecutrix.
6.   The Trial Court recorded a finding that the date of birth of the
     prosecutrix is 09.12.1997, therefore, she was less than 16 years
     of age when the alleged incident took place. It is also held that the
     accused-Sanjay Kumar was known to the family of the prosecutrix
     and taking advantage of the proximity, he enticed and induced her
     to sit in the vehicle and thereafter they went to Rampur. On the
     issue of commission of sexual intercourse, the Trial Court noted that
     PW-6/Jawala Devi having not supported the prosecution, the only
     statement on this issue was the statement of PW-13/Prosecutrix.
     On the basis of corroborative statements of PW-1/Narender Shail,
     PW-3/Babu Ram and the statements of PW-13/Prosecutrix, the Trial
     Court found that the Prosecutrix stayed for a night in the house of
     PW-6/Jawala Devi and coupled with the medical report, believed the
     prosecution version and convicted the accused/Sanjay Kumar for
     committing offence of rape whereas the accused/Chaman Shukla
     has been convicted for committing offence under Section 201 read
     with Section 34 IPC.
7.   In the impugned judgment rendered by the High Court, after an
     elaborate discussion of the evidence on record, it is held that the
     prosecution has failed to establish the charges against the accused/
     respondents. The High Court observed that as per the prosecutrix the
     accused/Sanjay Kumar took her to Rampur in the house of PW-6/
     Jawala Devi on 30.03.2012 and during night he committed rape. The
     next evening accused/Sanjay Kumar took her to the house of co-
     accused/Chaman Shukla and had left her there and on the 3rd day
     i.e. 01.04.2012, some people including co-accused Lekh Ram from
[2025] 4 S.C.R.                                                     1713

               State of Himachal Pradesh v. Sanjay Kumar


     her village came to the house of Chaman Shukla and took her to the
     Police Station, Rampur and made a statement that she ran away from
     her house because her parents used to beat her. Accused/Chaman
     Shukla made her to make an incorrect statement and accused/
     Lekh Ram threatened her. Thereafter, Prosecutrix accompanied by
     accused/Chaman Shukla came to Police Station, Rampur and on
     the basis of her statement Daily Diary Report Mark-Z1 was entered.
     Her statement under Section 164 Cr.P.C was also recorded vide
     exhibit PW-13/A. In cross-examination, she admitted that she did
     not disclose anything to PW-6/Jawala Devi or her family members
     or even thereafter did not disclose anything to co-accused/Chaman
     Shukla and his family members, though she spent one night there.
     She admitted that she had not disclosed that the accused/Sanjay
     Kumar committed rape with her. Throughout her journey from Bilaspur
     to Rampur she did not inform to anyone that the accused/Sanjay
     Kumar had kidnapped her. She categorically admitted that accused/
     Sanjay Kumar committed rape with her at Thali Chakti and not at
     the house of the co-accused/Chaman Shukla and that the rape was
     committed in the night of 30.03.2012, in the house of PW-6/Jawala
     Devi and on 31.03.2012 she stayed in the house of accused/Chaman
     Shukla and no rape was committed with her on that date as accused/
     Sanjay Kumar was not there.
8.   The High Court found that the best evidence about the presence of
     accused/Sanjay Kumar at Rampur was that of PW-6/Jawala Devi,
     as rape was committed at her residence. However, PW-6/Jawala
     Devi has not supported the prosecution nor any other witness who
     accompanied accused/Lekh Ram have been examined. However, in
     her statement exhibit PW-13/A and also in supplementary statement
     dated 08.04.2012, the Prosecutrix had never disclosed that rape
     was committed upon her at Rampur. There is no evidence as to the
     relation between accused/Sanjay Kumar and PW-6/Jawala Devi.
     In respect of the medical evidence, the High Court opined that the
     possibility of rape could not be ruled out, but the question remained
     as to who committed the rape and moreover, the DNA profile of the
     semen found over the underwear of the Prosecutrix has not been
     done. It is also found, as per evidence, that accused/Sanjay Kumar
     alone committed rape as there is no charge to that effect against
     co-accused/Chaman Shukla. However, accused/Chaman Shukla was
     never informed by the Prosecutrix about the commission of rape.
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9.   Since the FIR was lodged regarding the abduction of the Prosecutrix,
     there is no allegation of rape in the FIR. In her statement under
     Section 164 Cr.P.C the Prosecutrix stated that rape was committed
     in the night of 31.03.2012 when she was in the house of accused/
     Chaman Shukla. However, in her Court’s statement she stated
     that rape was committed by accused/Sanjay Kumar in the night of
     30.03.2012 when they were staying in the house of PW-6/Jawala
     Devi. She admits of not disclosing the fact of commission of rape to
     anyone in the village Rampur or to the villagers or accused/Chaman
     Shukla who brought her to the Police Station, Rampur.
10. In view of the above statement on record, we are of the view that
    there is material contradiction in the statement of the Prosecutrix as
    to the date of commission of rape and since accused/Sanjay Kumar
    was not with the Prosecutrix in the night of 31.03.2012 when she
    was in the house of co-accused/Chaman Shukla and there is no
    allegation of rape against accused/Chaman Shukla in whose house
    she stayed on the next night, the High Court has rightly concluded
    that the commission of rape by accused/Sanjay Kumar is not proved.
11. In the above view of the matter and, particularly, for the reasons that
    the view taken by the High Court is one plausible view considering
    the evidence on record, interference against the judgment of acquittal
    rendered by the High Court is not called for. Accordingly, both the
    appeals challenging acquittal of accused/Sanjay Kumar and accused/
    Chaman Shukla are dismissed.

     Result of the case: Appeals dismissed.




     †
         Headnotes prepared by: Divya Pandey