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CASE NO.: Review Petition (crl.)  1038 of 2005

PETITIONER: AHSA RAM

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT: 25/02/2008

BENCH: H.K. SEMA & P.P. NAOLEKAR

JUDGMENT: JUDGMENT O R D E R

REVIEW PETITION(CRL.) NO.1038 OF 2005 IN CRIMINAL APPEAL NO.1266 OF 1998

       In our judgment and order dated 17.11.2005 this Court while allowing the  appeal preferred by the State also enhanced the punishment of the accused under  Section 376 IPC from five years RI to RI for life, after hearing the parties. By the  said judgment the order of the High Court acquitting the accused was set aside.         On 22.11.2005 that is after the judgment was delivered by this Court, the  prosecutrix, namely, Smt. Seema, daughter of accused Asha Rams has filed the  following affidavit : "       I, Seema daughter of Sh. Assa Ram now married wife of  Bhag Singh resident of Shimla Tailor Ward No.11 near Post Office  Balachaur Distt. Nawanshahar do hereby solemnly affirm and declare  as under :- 1.      That I am the daughter of Sh. Assa Ram resident of village  Chaklu teh.Ark Disst.Solan HP.  

Earlier residing at Sevant Quarter Raj Bhawan Shimla. 2.      That there was a dispute between my parents and at that  time I was minor and was residing with my mother alongwith my elder  sister namely Uma.  At that time I was minor aged 14 years and was  under the influence of my mother Kalawati who was separately residing  from my father. 3.      That as there was a matrimonial dispute between my mother  and father. My mother wanted to take revenge from my father and she  compelled me to lodge a false case u/s 376 of IPC against my father. 4.      That under the influence of my mother and also being minor  I did not know the consequence I lodge false FIR No.110 of 1988 u/s  376 of IPC at police station Chotta Shimla and accordingly my father  Assa Ram was arrested. I was also compelled by my mother under  whose custody I was living and also the police to depose in the court  against my father that he committed rape upon me. Accordingly  I  deposed in the trial court of Addl. Sessions Judge Shimla against my  father. 5.      That the police in-connivance with my mother fabricated  false case property i.e. Salwar and under wear which did not belongs to  me as my father never committed rape upon me. 6.      That my father bears a good moral character and all this  unfortunate happened due to my mother. 6.      That my father was innocent and he did not commit any rape  with me and case was falsely lodged against him and I also deposed  against my father in the court of Addl. Sessions Judge Shimla at the  instance of my mother and police. If I did not depose so at that time

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against my father then my mother would have harmed me alongwith  police. 7.      That on the day of alleged occurrence I was not living with  my father nor I came to my father’s house on that day, so the questions  of committing rape does not arise.                                 Seema                                 Deponent....  Verification;            I, the above named deponent further hereby solemn and  affirmation that the contents of paras no.1 to 7 of my above affidavit  are true and correct to the best of my knowledge and belief and  nothing has been kept concealed therein. Verified & signed at            Seema                                 Deponent... Dated:-22 NOV 2005."

       The statement of prosecutrix was examined by the trial court, examined by this  Court and accepted.  Before the trial court she gave a statement that  her father  raped her on the fateful day. Relying upon the statement and evidence on record the  trial court convicted the father of the prosecutrix. It was re-examined and accepted  by this Court. This Court was of the view that the statement of the sprosecutrix  inspired confidence.         In our view,  the subsequent affidavit filed by the prosecutrix on 22.11.2005,  read thus,  on the face of it, appears to be false and afterthought aimed at to bail out  her father from undergoing life imprisonment. The said affidavit, in our view, is false  and it would have far reaching legal consequences.          In view thereof, this review petition is dismissed. We further direct the Sessions  Judge, Shimla to take the affidavit dated 22.11.2005 filed by the prosecutrix into the  record and initiate a proceeding in accordance with the provisions contained in  Chapter XI of the Indian Penal Code. It is open to the Sessions Judge, Shimla to  pass any appropriate order as may deem fit and proper in accordance with law.         With the aforesaid direction, the review petition is dismissed. Registry shall  transmit the records along with the copy of this order to Session Judge, Shimla  forthwith.