Rajasthan High Court - Jodhpur
State vs Prem Chand on 28 February, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Crml Leave To Appeal No. 297 / 2016
State of Rajasthan
----Appellant
Versus
Prem Chand S/o Ram Chandra Regar, Rawat Ka Talab, P.s.
Vijaypur, Distt. Chittorgarh.
----Respondent
_____________________________________________________
For Appellant : Mr. V.S. Rajpurohit, Public Prosecutor for the
State.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 28/02/2017 Appellant, State of Rajasthan, has preferred this Leave to Appeal under Section 378(3) & (1) Cr.P.C. against judgment dated 28th of July 2016 passed by Special Judge, Protection of Children from Sexual Offences Act, Chittorgarh (for short, 'learned trial Court'). By the impugned judgment, learned trial Court has acquitted accused-respondent for offence under Sections 376, 452 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act').
Succinctly stated, the facts of the case are that complainant Ms. 'L' alongwith her brother Suresh submitted a written report (Ex.P/15) before SHO, Police Station Kotwali, Nimbahera on 2 nd of April 2015, stating therein that for last two months she is residing with her elder sister Ganga Bai. The report also unfurls that on 1 st of April 2015, at about 3 PM, when complainant was busy in domestic work separating chaff from wheat, accused entered in (2 of 6) [CRLLA-297/2016] the house of her sister and forcibly ravished her. The report further reveals that when accused-respondent was involved in commission of rape, complainant's brother-in-law came at the site and thereupon accused fled away from the scene of occurrence. On the basis of report, police registered FIR No.119 of 2015 for the offences aforesaid. Requisite investigation was carried out by police and in the process of investigation clothes of complainant Ms. 'L' were seized and she was subjected to medical examination and her statement under Section 164 Cr.P.C. is also recorded. In order to ascertain her age, requisite record was also summoned from the school. Later on, accused was apprehended and he too was subjected to medical examination. Upon completion of investigation, police submitted charge sheet against accused- respondent for the aforesaid offences.
Learned trial Court framed charges against accused- respondent and on his denial of charges, he was put to trial. During trial, prosecution examined 12 witnesses including complainant PW3 Ms. 'L'. That apart, in all 17 documents were exhibited. After closure of prosecution evidence, statement of accused-respondent under Section 313 Cr.P.C. was recorded. Although in his defence no evidence was tendered by the accused- respondent but the statement of prosecutrix recorded under Section 161 Cr.P.C. was exhibited as Ex.D/1. The learned trial Court, thereafter, heard final arguments and by the impugned judgment found that age of the prosecutrix is doubtful and prosecution has miserably failed to prove charges beyond reasonable doubt. The learned trial Court also found that (3 of 6) [CRLLA-297/2016] relationship between the accused-respondent and prosecutrix was consensual.
Learned Public Prosecutor has strenuously urged that the learned trial Court has seriously erred in appreciating the prosecution evidence and therefore it is a fit case wherein leave to appeal is to be granted. Learned Public Prosecutor submits that record of the institution where the prosecutrix studied was produced before the learned trial Court for proving her age and as per that record she was minor yet the learned trial Court has not taken note of that vital evidence and therefore per se findings and conclusions of the learned trial Court are perverse and cannot be sustained. Learned Public Prosecutor has argued that looking to the grave and serious nature of offence, learned trial Court ought to have scrutinized the prosecution evidence with pragmatic approach while recording its finding in favour of the accused. Lastly, learned Public Prosecutor submits that findings and conclusions of learned trial Court are per se vulnerable.
I have heard learned Public Prosecutor, perused the impugned judgment and thoroughly scanned the entire record of the case.
Upon perusal of the record, more particularly, statements of PW3 Prosecutrix and PW5 Suresh (real brother of prosecutrix and signatory to written report Ex.P/15), it is abundantly clear that there are serious contradictions in the testimony of both the witnesses. Indisputably, PW5 Suresh is also first informant alongwith prosecutrix but in his statement he has completely repudiated the prosecution story inasmuch as he has stated that (4 of 6) [CRLLA-297/2016] no incident as alleged has taken place. While it is true that in juxtaposition to the statement of PW5 Suresh, PW3 prosecutrix has reiterated her stand of the written report but during her cross- examination on some vital questions she has given evasive answers and in deposition she has very candidly admitted that report was lodged by her on being prompted by her brother Suresh. It is also noteworthy that at the time of incident prosecutrix was married and educated upto 8th standard yet she has not been able to state exact age of her brother Suresh and other siblings. A very vital fact that accused was known to the prosecutrix and related to her, cannot lose sight of the Court. The learned trial Court has also critically examined the testimony of prosecutrix and other witnesses and more particularly PW5 for discrediting her statement. There is yet another aspect of the matter that although the prosecutrix was subjected to medical examination but the medical board has not given any opinion about her age. The learned trial Court has also made sincere endeavour to appreciate other evidence which was available on record including the evidence of PW6 Gokul Lal, who was examined for proving age of the prosecutrix.
A close scrutiny of the testimony of PW6 makes it abundantly clear that he has not produced any concrete proof about age of the prosecutrix. As regards the allegation of rape, suffice it to observe that neither the medical report is supporting the prosecution case nor the statements of PW8 Dr. Kamlesh Babel and PW10 Dr. Seema Babel support the prosecution case that (5 of 6) [CRLLA-297/2016] prosecutrix was subjected to rape. Both these doctors have stated in clear and unequivocal terms that there was no mark of external violence or injury on person of prosecutrix and accused while admitting that in case of rape there are probable chances of external injuries on the person of victim as well as aggressor. Therefore, in totality, in my considered opinion, learned trial Court has not committed any error much less manifest error in appreciation of evidence. Moreover, the conclusions drawn by the learned trial Court are neither improbable nor perverse in the backdrop of facts and circumstances of the case.
The scope of judicial review against the verdict of acquittal is of course wide in amplitude and it is open for this Court to re- apprise the evidence and conclusions drawn by the learned trial Court but with a rider that appellate Court considers the judgment of the trial Court perverse. When two views are possible upon appreciation of evidence, it is not expected of the appellate Court to reverse the judgment of acquittal merely because other view is possible. In absence of any perversity or any legal infirmity, or non-consideration of evidence on record, this Court in exercise of appellate jurisdiction is required to act with circumspection for reversal of judgment of acquittal.
While it is true that in a given case two views are reasonably possible from the prosecution evidence available on record but then this sort of situation itself is sufficient to draw an inference that prosecution has failed to prove its case beyond reasonable (6 of 6) [CRLLA-297/2016] doubt. Therefore, I am unable to find any infirmity in the impugned judgment so as to grant leave to appeal in the matter. In totality, the impugned judgment rendered by the learned trial Court is based on sound appreciation of evidence which requires no interference.
Resultantly, leave craved for is declined and the appeal is hereby rejected.
(P.K. LOHRA) J.
arora/