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Case Comment: Raju Thapa vs. State of Uttarakhand

It is better that ten guilty persons escape than one innocent suffer. - Sir William Blackstone

Law does not operate in vacuum. It is not a set of mechanical rules, but requires subtle application and interpretations based on provided situation.

Rape is a heinous crime which is generally seen to be committed against women, although many a times Court has observed Section 376 of I.P.C.being used falsely.

The present case is an appeal filed in the High Court of Uttarakhand by Appellant- Accused Mr. Raju Thapa u/s 376 of Cr.P.C. against the judgment of District and Sessions Judge Bageshwar in the case of State v. Raju Thapa convicting the accused u/s 376 of I.P.C. and Section 67-A of the IT Act 2000.

In December 2010, when a Nepali customer visited Mr. Darshan Khetwal's shop (Photo Studio) to load Picture- songs in his mobile then it came to light that there was obscene video of Mr. Khetwal's niece (Km. Reeta), aged 14 years. At this he informed Mr. Dalip Singh Khetwal and showed him the video. On inquiring about the same from the Prosecutrix (niece) it was informed that the incident took place two years back, when she was forcibly raped by her former teacher of Gairad Bilhet School – Mr. Raju Thapa.

The Prosecution– Complainant Mr. Dalip Singh Khetwal lodged written report at P.S. Kotwali Bageshwar, and handed over the C.D. Therefore F.I.R. was prepared and the prosecutrix was examined by the Doctor.

The Sessions Judge Bageshwar whereby framed charges against the accused u/s376 and 506 of I.P.C.,Section 67A and 67B of the IT Act 2000,and Section 4 and 6 of Indecent Representation of Women (Prevention) Act 1986; and passed sentences against him. The accused in his statement u/s 313 of Cr.P.C. denied the prosecution case and filed a criminal appeal u/s 374 of Cr.P.C. in High Court of Uttarakhand.

Prosecutrix's Deposition:
The Prosecutrix had stated that in the year 2008 she was studying in Class 8th in Junior High School Gairad. In the month of October, 2008 the accused called her alone in the verandah of the School and told her that her study work was not up to the mark. He further threatened her that she had failed twice in class 6th and if she has to pass class 8th then she should be in his contact, which if declined would result in the accused expelling her from the school. He also asked her to visit him in his office, which she did not, to which the accused beat her on the pretext of study. Again in the same month when the Headmaster not in School he called her in his office, bolted the door form inside and asked her to lay down on the mat. On her refusal to do so she was forcibly laid down and the accused committed rape on her. When she cried he closed her mouth with his hand, and threatened to kill her when she tried to run away from the room. Again after 20-25 days he called her and asked her to put down the salwar and raise the hem of shirt, which she did and he took a photo of her; he also committed rape on her.

The Prosecutrix deposed that she narrated the truth to her paternal uncle in 2010.

Brief Description:
Learned Counsel appearing on behalf of the Appellant-Accused had contended that there had been inordinate delay in lodging the F.I.R., without any satisfactory explanation for the same, and therefore the whole Prosecution case based on this F.I.R. cannot be relied upon. Apart from this no evidence was produced to prove the fact that the obscene mobile video was taken by the accused. Furthermore the computer hard-disc was not produced before the court for Forensic examination. Even the mobile of Mr. Darshan Singh was not taken by the I.O. for forensic examination, and no date and time of occurrence was mentioned by the Prosecutrix in her statement. The prosecution failed to prove their case and thus the Appellant-Accused is entitled to get benefit of doubt in the case.

Moreover in the cross examination Mr. Dalip Singh stated that the informed period of incidents as stated to him by the Prosecutrix was one year ago, however in the F.I.R. they mentioned the period of incident two years ago.
Learned Brief Holder representing the State submitted that in sexual offences delay in lodging FIR has to be considered with different yardstick. The accused herein the case, being the class teacher of victim had threatened to fail and expel her from the school, and also extended threats to her life, and as the honour of family was involved she did not tell the incident to anyone, until the video recording came to light and she was compelled to tell the truth. Therefore, the delay has been explained satisfactorily. He relied on the case of-Satpal Singh v. State of Haryana[1].

The Apex Court also considered the issue at length in the case of State ofHimachal Pradesh v. Prem Singh[2]wherein it was observed as- "So far as the delay in lodging the F.I.R. is concerned the delay in a case of sexual assault cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the Prosecutrix and her family members before moving to the police station to lodge a complaint. In a tradition bound society prevalent in India more particularly rural areas it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the F.I.R."

Banking upon the case ofState of U.P. v. Manoj Kumar Pandey[3],Learned Brief Holder stated that the Prosecutrix was merely 12-13 years of age at the time of the incident and therefore she could not be held as a consenting party.

While envisaging the case facts the only issue raised before the court was: "Whether the decision of the Sessions Judge was tenable and the accused was liable for committing rape on the victim or not?"

Case Analysis:
The shoddy investigation and witless measures taken by the appellants creates major scepticism before the court. The clincher that the whereabouts of Nepali customer from whom the obscene video was fetched could not be traced, or any evidence that the video was availed from any such person could not be discovered was quite bizarre. More so Mr. Darshan Singh never really produced the hard disk in which the video was copied to the police for forensic test. He in fact had no registered authority to prepare the C.D. from computer under the IT Act. The act of letting the Nepali customer go away, and not narrating the same to the police authorities was preposterous.

Here one could rely on the Supreme Court's judgement inAshok Kumar v. State of Madhya Pradesh[4]in which it was held that-
"1. The circumstances from which inference of guilt is sought to be drawn must be established cogently and firmly.
2. Those circumstances should be of definite tendency unerringly pointing towards the guilt of accused.
3. The circumstances taken from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."

The investigation by inspector B.L. Viswakarma was not diligently performed. No efforts were made to ascertain whether the Principal was really on leave when the incident took place, which could be verified from the attendance register. He did not send the video clipping for the forensic examination to determine the date and time of its making. This further degraded the Respondent's case.

This is an admitted fact that the person shown doing the misdeed in the video is not identifiable. This fact goes unanswered that why action was not taken against the accused when the video had come on the mobiles 2 years ago; and so the inordinate delay of 2 years may not be ignored with the application of cases cited by the prosecution.

This fact cannot be ignored that there were many students, and School staff at the time of the incident taking place but no one notice the same. Here one could take the reference of the case –Tukaram v. State of Maharashtra[5]whereby the Court acquitted the accused Constables for the reason that the alleged victim did not put up resistance and that the incidence was a "Peaceful Affair". Herein the present case again the victim contending that she was forcibly raped and she was trying to run away from the room is unacceptable as she never really screamed for help. It is in fact practically impossible for a person to force himself on someone while shooting a stable video as it is alleged in the current scenario.

The aforementioned circumstances do not complete the chain of events to render the accused to be the one who prepared the video. The Trial Court had therefore failed to appreciate the evidences and facts of the case in right perspective. And hence the High Court decision of setting aside the same and acquitting the Appellant-Accused is justifiable.

"A false accusation of rape may be as damning to an accused as to a victim of rape; and such cases cannot be taken lightly"- Recently in an unprecedented verdict, the Delhi High Court said while initiating criminal proceedings against a woman for making false allegations of gang rape against two Doctors[6].

It must be noted that in such cases the accused apparently steps into the shoes of a victim. He may be shunned in the society and by his own family for no fault of his own because some other person has levelled fallacious allegations of rape in pursuance of their evil design.

[1]2010 CRI. L.J. 4283
[2]AIR 2009 SC 1010
[3]AIR 2009 SC 711
[4]AIR 1989 SC 1890
[5]1979 AIR 185
[6]Last, F.M. (2018, December 24).
Woman faces action for framing two Delhi Doctors in gang rape case (Web log post).
Retrieved from: doctors-in-gang-rape-case/story-kubdladEEDvePJ6rKf4yUM.html

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