The State Of Himachal Pradesh vs Sanjay Kumar

2025 INSC 561 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 595 OF 2016

STATE OF HIMACHAL PRADESH ... APPELLANT

VERSUS

SANJAY KUMAR ...RESPONDENT WITH

CRIMINAL APPEAL NO(s). 596 OF 2016

STATE OF HIMACHAL PRADESH ... APPELLANT

VERSUS

CHAMAN SHUKLA ...RESPONDENT

JUDGMENT

PRASHANT KUMAR MISHRA, J.

Signature Not Verified

1. Digitally signed by SAPNA BISHT Date: 2025.04.23 These appeals would call in question, the impugned 18:02:10 IST Reason:

Judgment of acquittal dated 28.12.2015 passed by the High 2

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,18601, 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.).

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

1 (for short, ‘IPC’) 3

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 4

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 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 5

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 6

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 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 7

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, 8

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 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 9

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- 10

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.

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 11

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 12

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.

………………………………………J. (AHSANUDDIN AMANULLAH)

.......……………………………….J. (PRASHANT KUMAR MISHRA) NEW DELHI;

APRIL 23, 2025.