Himachal Pradesh High Court
State Of H.P vs Satish Kumar on 20 May, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 710 of 2008
Judgment reserved on: 19.04.2016
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Date of Decision: May 20 , 2016
State of H.P. ...Appellant.
Versus
Satish Kumar ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting? 1
For the Appellant : Mr. R.S. Verma and Mr.V.S.
Chauhan, Addl. AGs., with
Mr.Puneet Rajta, Dy. AG., for the
appellant-State.
For the Respondent: Mr. Naveen K. Bhardwaj, Advocate.
Sanjay Karol, J.
Assailing the judgment dated 26.06.2008, passed by the Additional Sessions Judge, Solan, H.P., in Sessions Trial No.8-S/7 of 2008, titled as State of Himachal Pradesh Versus Satish Kumar, whereby accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 22. It is the case of prosecution that prosecutrix and the accused used to reside as neighbours at Rabon, Solan, H.P. On the false promise of marriage, accused .
subjected the prosecutrix to sexual assault. This was so done sometime in the month of May 2007. On 22.10.2007, accused brought the prosecutrix to Shimla and ther eafter took her to his native place Seri Basa near of Chargaon . Finding the prosecutrix to be missing from home, Bhagat Ram (PW.2), father of the prosecutrix, on 23.10.2007, lodged a complaint (Ex.PW.2/A), on the basis rt of which FIR No.300/07, dated 23.10.2007 (Ex.PW.13/A) was registered against the accused at Police Station, Solan, H.P., under the provisions of Sections 363 and 366 of the Indian Penal Code. Inquiries made by the parents of the prosecutrix revealed that the accused had left for his village alongwith the prosecutrix. Even tually police apprehended the accused and arrested him. Prosecutrix was with him at that time. Prosecutrix was got medically examined from Dr. Savita Aggarwal (PW.3), who issued MLC (Ex.PW.1/A). Report of the FSL (Ex.PW.18/A) was obtained by the police. Investigation revealed the prosecutrix to be minor and record of her age taken on ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 3 record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.
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3. Accused was charged for having committed offence s punishable under the provisions of Section s 376, 363 and 366 of IPC, to which he did not plead guilty and claimed trial.
of
4. In order to establish its case, in all, prosecution examined as many as nineteen witnesses.
Statement of the accused under Section 313 of the Code rt of Criminal Procedure was also recorded, in which he took plea of false implication on account of his refusal to marry the prosecutrix as per the desire of her mother. No evidence in defence was led.
5. Trial Court, after appreciating the testimony of the prosecution witnesses acquitted the accused giving benefit of doubt, on the following grounds:-
(i) There was contradiction in the testimony of the prosecutrix (PW.1) and Bhagat Ram (PW.2) with regard to the manner the accused and the prosecutrix were traced and apprehended by the police;
(ii) Prosecutrix appeared to be a consenting party and her version of being forcefully taken away by ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 4 the accused appeared to be doubtful and contrary to the record; and
(iii) Medical record did not corroborate the version of the prosecutrix of being subjected to sexual .
intercourse .
Hence the present appeal.
6. While assailing the judgment, it is contended by Mr. R.S. Verma, learned Additional Advocate General, on behalf of the appellant-State that trial Court of appreciated the testimonies of the witnesses in a very casual and rt insensitive manner. Contradictions so observed by the trial Court are minor, not rendering the genesis of the prosecution story to be doubtful. Also the findings returned cannot be said to be legally based on correct and complete appreciation of evidence and principle of law. In effect, judgment is perverse, findings are illegal and has resulted into travesty of justice.
On the other hand, Mr. Naveen K. Bhardwaj,
7. learned counsel, supports the judgment for the reasons assigned therein.
8. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecuti on. Having considered the material on ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 5 record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.
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9. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to of reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the rt jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v.
Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 6 of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in .
accordance with rules and principles well known and recognized in the administration of justice." "
10. We shall first deal with the age of the prosecutrix. Trial Court has held the prosecutrix to be of minor. On 02.06.2008, when she was examined in Court, she disclosed her age to be of 14 years. Her father Bhagat Ram (PW.2) corroborates such version. LHC rt Ranjana (PW.12) got the prosecutrix medically examined on 26.10.2007. As per version of Dr.J.P. Kaushik, Radiologist (PW.5), who proved the skigram s (Ex.PW.5/C to Ex.PW.5/F), Radiological age of the prosecutrix was found to be 14 to 16 ½ years. However, what clinches the issue, establishing the prosecutrix to be born on 18.08.1992 is the certificate (Ex.PW.2/B), issued by the Principal of the school, where she was studying and proven on record by Sushma Sood (PW.6). Also testimony of Usha Kiran Pant (PW.9), who has proved the school record pertaining to the admission of the ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 7 prosecutrix in the Primary school (Ex.PW.9/A) , establishes such fact.
11. Thus, it stands established that as on the date .
of commission of the alleged crime, age of the prosecutrix was 15 years, 2 months and 4 days.
12. Dr. Savita Aggarwal (PW.3), who medically examined the prosecutrix on 27.10.2007, has proven MLC of (Ex.PW.1/A). On local examination, the doctor found no injury marks on the body of the prosecutrix. Hymen was ruptured and there was no fresh bleeding.
rt Two fingers
could be inserted inside the vagina. Doctor opined the
prosecutrix to be habitual to intercourse and the
examination was not suggestive of recent sexual
intercourse.
13. Absence of any conclusion, of sexual
intercourse, by an expert cannot be a ground for disbelieving the prosecutrix or acquitting the accused.
The law in the issue is no longer res integra.
14. The Apex Court in Madan Gopal Makkad v.
Naval Dubey and another, (1992) 3 SCC 204, has held that:
"34. A medical witness called in as an expert to assist the court is not a witness of fact and the ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 8 evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court .
on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.
35. Nariman, J. in Queen v. Ahmed Ally, (1989) 11 of Sutherland WR Cr 25, while expressing his view a on medical evidence has observed as follows:
"THE evidence of a medical man or other rt skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion."
36. Fazal Ali, J. in Pratap Misra v. State of Orissa, (1977 3 SCC 41, has stated thus:
"... [l]t is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have had sexual intercourse with the prosecutrix."
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 which reads thus:
"THUS to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 9 vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any .
seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. "
38. In Parikh 's Textbook of Medical Jurisprudence rt and Toxicology, the following passage is found:
"SEXUAL intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4 at page 1356, it is stated:
"... [E]ven slight penetration is sufficient and emission is unnecessary."
40. In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of S. 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes, (1841) 9 C&P 752, (2) R. v. Lines and R. v. Nicholls, (1844) 1 Car & Kir 393.
41. See also Harris's Criminal Law, (Twenty-second Edition) at page 465.
::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 1042. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of Califomia reads thus:
"RAPE; essentials Penetration sufficient. The essential guilt of rape consists in the .
outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."
43. The First Explanation to S. 375 of Indian Penal Code which defines 'Rape' reads thus:
"EXPLANATION.PENETRATION is sufficient to of constitute the sexual intercourse necessary to the offence of rape."
44. In interpreting the above explanation whether complete penetration is necessary to constitute an rt offence of rape, various High courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor, (1925) 26 CrLJ 1185, (2) Abdul Majid v. Emperor, AIR 1927 Lah 735(2), (3) Mst. Jantan v. Emperor, (1934) 36 Punj LR 35, (4) Ghanashyam Misra v. State, 1957 CriLJ 469, (5) Das Bernard v. State, 1974 CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape."
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15. Also, it is a settled principle of law that absence of injuries on the external or internal parts of the victim by itself cannot be a reason to disbelieve the testimony of the prosecutrix. (See: Mukesh v. State of ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 11 Chhattisgarh, (2014) 10 SC 327); State of Haryana v.
Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC 362; and .
State of U.P. v. Chhotey Lal, (2011) 2 SCC 550).
16. The Apex Court in Puran Chand v. State of Himachal Pradesh, (2014) 5 SCC 689, observed that even non-rupture of hymen itself would be of no consequence of and rape could be held to be proved even if there is slight penetration.
17. Mere fact that hymen is intact or that there is rt no actual wound on the private part of the prosecutrix is not conclusive of the fact that prosecutrix was not subjected to rape. (Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688)..
18. It is settled principle of law that testimony of prosecutrix is sufficient enough to convict the accused if it otherwise inspires confidence. (See: Rajesh Patel Versus State of Jharkhand, (2013) 3 SCC 791 and State of Rajasthan Versus Babu Meena, (2013) 4 SCC 206).
19. The Court is duty bound to appreciate the evidence in totality of the background of the entire case.
It is also a settled proposition of law that in case the ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 12 evidence read in its totality and the story projected by the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar .
Versus State (NCT of Delhi), (2012) 7 SCC 171, has observed as under:-
"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix of and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of rt prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable p rosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v.
Chaluverapinake Apal S.P. & Anr., (2003) 3 SCC 175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220.
::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 1323. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:
"4....the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the .
prosecutrix was so improbable that it could not be believed."
24. In Rajoo & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: (SCC p. 141, para 10) "10....that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par of with that of an injured witness and if the evidence is reliable, no corroboration is necessary."
The court however, further observed:
rt
"11.......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication..... there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:
"9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter."
26. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a women of "loose moral character" can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 14 sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. (Vide: State of Maharashtra & Anr. v. Madhukar Narayan Mardikar, (1991) 1 SCC 57; State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384; and State of U.P. v. Pappu @ .
Yunus & Anr., (2005) 3 SCC 594.
27. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
28. The courts while trying an accused on the charge of of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
rt
29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra, (2979) 2 SCC 143; and Uday v. State of Karnataka, (2003) 4 SCC 46.
30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 15 provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
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31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of."
of (Emphasis supplied)
20. It is a common case of the parties, as has emerged from the testimony of the prosecution witnesses rt that the accused and the prosecutrix were known to each other from before. Their relationship was more than that of an acquaintance. Defence taken by the accused of false implication , on the ground that he refused to accede to the request of the mother of the prosecutrix, cannot be said to have been probablized at all. Prosecutrix was only 15 ½ years of age. Her father was in a Government service. Parties hail from District Solan, which is not a remote area. Generally people of the area are literate and economically and socially well off. There was no reason for the mother of the prosecutrix to have her daughter married to the accused either. It is not that ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 16 accused had a good family background or was economically and socially well off. Accused was a mere employee working in a medicine factory at Rabon.
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However, we clarify not to have determined such defence to be false either.
21. The question which still needs to be considered is as to whether the prosecutrix could be said of to be a reliable witness and her testimony to be inspiring in confidence or not. Having perused the same, we are quite convinced it not to be so.
rt Also there is no
corroborative evidence on record. Her mother was not
examined and her father's statement is contradictory in nature.
22. Bhagat Ram (PW.2) is the father of the prosecutrix. With regard to the alleged crime, he states that his wife was working in a factory. Where? he does not state. He states that on 22.10.2007, when he reached home at 3.00 PM, he found the prosecutrix not to be there. Despite best efforts he could not trace her an d as such he called for his wife, who reached at 5.00 PM. At about 8.00 PM, accused telephonically informed his wife that prosecutrix was with him. Hence the matter was ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 17 reported to the police on 23.10.2007. After two days, prosecutrix was brought back by the police. His wife has not been examined in Court. Whether the accused spoke .
with her on phone or not is something, which remains un- established by the prosecution. Also there is delay of 24 hours in reporting the matter to the police. Having learnt that prosecutrix was with the accused, why did he or his of wife not immediately take action remains unexplained by him.
23. Prosecutrix (PW.1) rt has tried to help the accused. In the instant case, prosecutrix is a minor and as such her consent becomes immaterial. Only question which needs to be considered is as to whether her testimony inspires confidence or not .
24. We find that in Court, prosecutrix has not fully supported the prosecution. She was declared hostile and cross-examined by the Public Prosecutor. We do not find the witness to be reliable and her testimony, disclosing guilt of the accused to be inspiring in confidence. Her statement is in fact self-contradictory.
25. She states that on 22.10.2007, accused took her "somewhere" on the promise of marriage. She ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 18 qualifies the areas "somewhere" to be the village of the accused, but then she does not know its exact location.
She admits that on the day of occurrence of crime, while .
she was on her way to school, accused snatched her bag and asked her not to go to school. On her request, accused returned the bag but thereafter made her smell a handkerchief. She lost consciousness, which she of regained only after reaching the house of the accused, where she was forcibly subjected to rape by the accused.
Village of the accused and that of the prosecutrix are rt distant places. Her version that on her asking accused had tried to contact her parents on telephone, but since the call got disconnected, she could not talk stands materially contradicted by her father, according to whom, accused had spoken to his wife. In fact, she states that next day her mother had reached the village alongwith the police and she was taken to the hospital. Now it is in this background, we find that examination of her mother was absolutely necessary, for according to her father, police had brought back the prosecutrix after a period of two days.
::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 1926. Be that as it may, what renders the testimony of the prosecutrix absolutely contradictory, thus unbelievable , is her subsequent version of the accused .
having made her travel first in a bus, which she boarded from the old bus-stand, Shimla and then in a van to his village at Seri Basa, Tehsil Chirgaon. She admits to have crossed several public places and seen several persons.
of She admits not to have raised any hue and cry. She remembers to have travelled first from Solan to Shimla and thereafter to the village of the accused, but then rt contradicts her version by stating that right from her place till she reached the village of the accused, she continued to remain unconscious. She further contradicts her earlier version of her mother having reached the house of the accused the following day, by stating that it was after 2-3 days, when police reached the house of the accused. Her version of having been subjected to sexual assault is too vague for us to accept her statement to be true. She is not specific about the same. Apart from the contradiction, which we have observed, the place and the time, where such act took place is nowhere disclosed by her. Her explanation of not having revealed anything to ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 20 the passengers, during the time of her travel in a van to the village of the accused, on account of the threats meted out by the accused, is a mere improvement and .
exaggeration .
27. We find the version of Madan Lal (PW.19) of having recovered accused and the prosecutrix at Shimla and not at the native village of the accused to have been of contradicted by the prosecutrix herself.
28. Thus, to our mind, prosecution has not been able to establish by leading clear, cogent, convincing and rt reliable piece of evidence so as to prove that accused took away with him the prosecutrix out of the lawful guardianship of her parents without their consent and raped her.
29. The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.
30. The accused has had the advantage of having been acquitted by the Court below . Keeping in view the ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP 21 ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, since it .
cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.
of For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused rt are discharged. Record of the trial Court be immediately sent back.
(Sanjay Karol), Judge.
(Ajay Mohan Goel), May 20 , 2016. Judge.
(Purohit) ::: Downloaded on - 15/04/2017 20:24:21 :::HCHP