LexSTATE OF HIMACHAL PRADESH versus SHREE KANT SHEKARI
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A STATE OF HIMACHAL PRADESH v. SHREE KANT SHEKARI SEPTEM~ER 13, 2004 B [ARIJIT PASAYAT AND PRAKASH PRABHAKAR NAOLEKAR, JJ.] c D E F Penal Code, 1860-Sections 376 & 506-Rape of student by teacher- Victim became pregnant-Placing reliance on her evidence, Trial Court convicted the accused-But High Court acquitted him-Appeal against the acquittal-On appeal, Held: Question of consent of the victim was inconsequential as documentary evidence proved that on date of occurrence and even when FIR was lodged, victim was only about 14 years of age-High Court erred in putting burden on the victim to show that there was no consent-Plea of consent was not taken by accused in defence-High Court also erred in making hypothetical calculations regarding dates to doubt testimony of victim, an unintelligent girl and her illiterate mother-Delay in lodging of FIR satisfactorily explained-False implication too shallow to be acceptable-Judgment of High Court set aside-Order of Trial Court restored. Penal Code, 1860-Sections 228A, 376, 376-A, 376-B, 376-C & 376- D--Sexual offence-Punishment for disclosure of identity of victim-Restriction not relating to printing or publication a/judgment by High Court or Supreme Court-Held, to prevent social victimization or ostracism of such victim for which Section 228-A was enacted, it would be appropriate that in judgments of Court, name of the victim is not indicated. Constitution of India, 1950-Article 21-Right to life-Sexual crime against women-Held, is an unlawful intrusion on right of privacy and sanctity of a female-Courts expected to deal with such cases with utmost sensitivity. G According to the prosecution, Respondent-accused asked vidim, his student of class 4, to wait after school hours for solving a question, while he allowed other students to go. The victim remained in the class room when Respondent bolted the door from inside and forcibly committed sexual intercourse with her. Since he threatened the victim H she did not disclose this fact to any person. Few days later Respondent 380 -. ti .... ST A TE v. SREE KANT SHEKARl 381 again committed sexual intercourse with the victim. She became pregnant A and subsequently lodged report at police station, on the basis of which Respondent faced trial for alleged commission of offences punishable under Sections 376 and 506 IPC. Placing reliance on evidence of the victim, Trial Court convicted and sentenced Respondent to undergo imprisonment for 7 years. Fine was also imposed. In addition, Respondent B was directed to pay compensation of Rs.10,000 to the victim. However, High Court set aside the judgment of Trial Court and directed acquittal of Respondent on grounds that the age of the victim was more than 16 years; that no evidence was placed by prosecution to show that the victim had not consented to the act; and that the time of alleged rape as given by the victim and her mother was improbabilised by the medical C evidence. In appeal to this Court, Appellant-State ·submitted that the High Court failed to analyse the factual and the legal position in proper perspective and has kept out of consideration relevant matters and drawn D presumptuous conclusions and, therefore, the judgment is to be set aside. Allowing the appeal, the Court HELD : 1.1. Ex.PW6/A to Ex.PW6/C i.e. the records regarding admission of the victim to the school and her period of study unerringly E prove that the date of birth of the victim as per official records was 10.4.1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20.11.1993 she was about 14 years of age, and hence the question of consent of the victim was really of no consequence. [387-B-C) 1.2. Even otherwise the High Court seems to have fallen in grave F error in coming to the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent. Factually also the conclusion is erroneous right from the beginning that is from the stage when the FIR was lodged and in her evidence there was a categorical statement that the rape was forcibly G done notwithstanding protest by the victim. The High Court was therefore wrong in putting the burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent. But it is s
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