Himachal Pradesh High Court
Reserved On: 14.05.2024 vs Vijay Kumar on 10 June, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2023:HHC:13323-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 435 of 2011 Reserved on: 14.05.2024 .
Date of Decision: 10.06.2024
State of H.P. ...Appellant.
Versus
Vijay Kumar ..Respondent.
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Appellant/State: Mr. Sanjay Dutt Vasudeva, Deputy Advocate General.
For the Respondent : Mr. A.S. Rana, Legal Aid Counsel.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 29.04.2011, passed by learned Sessions Judge, Sirmaur District at Nahan, H.P. (learned Trial Court), vide which the respondent (accused before learned Trial Court) was acquitted of the charge framed against him. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 2for the commission of an offence punishable under Section 376 of IPC. It was asserted that the accused was employed as a servant with Jaggu Master resident of Jawalapur. He had visited the house .
of the informant. The victim (the name being withheld to protect her identity) and the accused were found missing on 09.05.2010 at about 3-4 pm. The victim's mother (PW2) and grandmother (PW1) went to search for the victim. They saw the accused near the bushes, who ran away after seeing them. The victim was lying unconscious. Her mother picked her up and found that her private parts were bleeding. She informed Ranjeet Singh (PW4) who informed the police. The police recorded an entry No.9 (Ext.
PW12/A) in the Police Station. ASI-Kewal Singh (PW17), HC Kalyan Singh (PW12), Constable Tika Ram and Constable- Bhupinder Singh went to the spot for verification of the entry. The victim's grandmother (PW1) made a statement (Ext. PW1/A), which was sent to the Police Station, where FIR (Ext. PW7/A) was registered.
ASI-Kewal Singh conducted the investigation. He filed an application (Ext. PW9/A) for conducting the medical examination of the victim. Dr Daljeet Kaur (PW9) conducted the victim's medical examination and found that there were signs of recent forcible penetration within 12 hours of the examination. She ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 3 issued the MLC (Ext. PW9/B) and retained the clothes of the victim, which were handed over to the police official accompanying the victim. ASI-Kewal Singh (PW17) prepared the .
site plan (Ext. PW17/A). He arrested the accused and filed an application (Ext. PW13/A) for conducting the medical examination of the accused. Dr Sanjeev Sehgal (PW13) conducted the medical examination of the accused and found that the accused was capable of performing sexual intercourse. He preserved the underwear and handed it over to the police official accompanying the accused. The accused led the police to the place of the incident and identified it. Memo (Ext. PW4/B) and site plan (Ext. PW17/B) were prepared. The case property was sent to SFSL, Junga and a report (Ext. PW6/A) was issued, in which it was shown that human blood of group 'B' was detected on the underwear, T-shirt and pyjama of the victim. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court of learned Judicial Magistrate, First Class, Paonta Sahib, who committed it for trial to the Court of Sessions.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 43. The learned Trial Court charged the accused with the commission of an offence punishable under Section 376 of IPC. He pleaded not guilty and claimed to be tried.
.
4. The prosecution examined 17 witnesses to prove its case. PW1-informant is the grandmother, PW2 is the mother and PW16 is the brother of the victim. Urmila Devi (PW3) saw the victim and the accused going towards the jungle. Ranjeet Singh (PW4) was told about the rape of the victim. PW5 is the victim.
Ajay Sehgal (PW6) conducted the chemical analysis and issued the report. Bheem Singh (PW7) signed the FIR. Ram Kishan (PW8) obtained the blood sample of the victim and found that it belonged to the B+ group after analysis. Dr Daljeet Kaur (PW9) conducted the medical examination of the victim. Jai Gopal (PW10) is the employer of the accused. LC-Mathura Devi (PW11) accompanied the victim to the hospital and brought the MLC and case property with her. Constable Kalyan Singh (PW12) proved the entry in the daily diary. Dr. Sanjeev Sehgal (PW13) conducted the medical examination of the accused. HHC-Himmat Singh (PW14) and HHC Gurcharan Singh (PW15) carried the case property to the State Forensic Science Laboratory (SFSL) Junga. ASI Kewal Singh (PW17) conducted the investigation.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 55. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was employed with Jai Gopal. He also admitted that his medical examination was conducted and .
samples were preserved. He denied the rest of the prosecution case. He stated that the case was filed against him based on suspicion. He had not done anything and he was falsely implicated.
6. Learned Trial Court held that the accused was known to the family of the victim and had visited her home on the date of the incident. The medical evidence shows that the victim could have sustained injuries while playing. The possibility of the accused carrying the victim to her home could not be ruled out.
The Investigating Officer failed to collect the blood-stained soil from the place of the incident and there was insufficient material to show that the incident had taken place at the place shown by the accused. The victim's brother stated that the victim was with him, which made the prosecution case suspect; hence, the accused was acquitted of the charge framed against him.
7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court failed to properly appreciate the ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 6 material placed before it. The victim's mother and grandmother specifically proved that the accused had visited their house and the victim and accused were found missing. Their testimonies .
were corroborated by Urmila Devi (PW3). The alternative possibility is not sufficient to discard the testimonies of eyewitnesses. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. The accused absconded during the proceedings pending before this Court. This Court held vide order dated 21.11.2023 that the appeal against acquittal can be heard on merit by appointing a Legal-Aid-Counsel/Amicus Curiae and there is no reason to wait for the service of the accused. Consequently, Mr. A.S. Rana, an Advocate, was appointed as a Legal Aid Counsel.
9. We have heard Mr. Sanjay Dutt Vasudeva, learned Deputy Advocate General for the appellant/State and Mr. A.S. Rana, learned Legal Aid Counsel for the respondent/State.
10. Mr Sanjay Dutt Vasudeva, learned Deputy Advocate General, for the appellant/State submitted that the prosecution led satisfactory evidence to show that accused had raped the victim. The testimonies of the victim's mother and grandmother ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 7 were ignored without any reason. The alternate possibility that the injuries could have been caused by way of a fall is not sufficient to discard the prosecution case. Hence, he prayed that .
the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
11. Mr. A.S. Rana, learned Legal Aid Counsel for the respondent/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same. He further submitted that the Medical Officer, who had examined the victim categorically stated that smegma was found on the penis of the accused, which is sufficient to negate the prosecution case. Learned Trial Court had taken a reasonable view, which could have been taken based upon the material placed before it and no interference is required with the same while deciding an appeal against acquittal.
12. We have given considerable thought to the submissions at the bar and have gone through the records carefully.
13. The present appeal has been filed against judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 8 SC 561, that the Court can interfere with an order of acquittal if the judgments suffer from patent perversity or there is some misreading of evidence or omission to consider the material on .
record. It was observed:
36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial Court.
37. This Court in the case of Rajesh Prasad v. State of Bihar1 encapsulated the legal position covering the field after considering various earlier judgments and held as below: --
"29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415] "42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court on the evidence before it may reach its conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 9 grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the .
nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall r be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
38. Further, in the case of H.D. Sundara v. State of Karnataka 2023 (9) SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: --
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 10 required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate .
court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: --
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;
(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
14. The present appeal has to be decided on the parameters laid down by the Hon'ble Supreme Court.
15. Dr Sanjeev Sehgal conducted the medical examination of the accused and he found that smegma was present, which was seen on retracting the prepuce. It was submitted based upon this ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 11 statement the presence of smegma negated the prosecution case.
Reliance was placed upon the judgment of the Hon'ble Supreme Court in State of Gujarat v. Kishanbhai, (2014) 5 SCC 108 : (2014) 2 .
SCC (Cri) 457: 2014 SCC OnLine SC 21 in support of this submission, wherein, it was observed:
"The accused Kishanbhai was shown to have been formally arrested at 6.40 a.m. on 28-2-2003 (even if the inference drawn by the High Court, that the accused Kishanbhai was in police custody since 9.00 p.m. on 27-2-2003 itself, is ignored). The accused could have been medically examined within 24 hours of the occurrence. The prosecution case does not show whether or not such action was taken. This lapse in the investigation of the case had also resulted in the omission of a vital link in the chain of events which would have unquestionably established the guilt of the accused Kishanbhai of having committed rape (or possibly his innocence).
16. In the cited judgment, the Hon'ble Supreme Court noticed that there was a lapse in the investigation, which included the fact that the accused was not sent for medical examination to establish his guilt/innocence and did not hold specifically that the absence of smegma established the innocence of the accused. In Jibhau Vishnu Wagh v. State of Maharashtra, 1995 SCC OnLine Bom 503: 1996 Cri LJ 803, a reference was made to the celebrated book of Mody on "Medical Jurisprudence and Toxicology" to hold that the presence of smegma is not of any medico-legal value. It was observed:
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 12"Secondly, Mr Mundargi urged that the smegma around the corona glans of the appellant is proof that he had not committed sexual intercourse. Mody in his book on "Medical Jurisprudence and Toxicology", Twenty-first Edition, page 380, has said, "the presence of smegma as .
proof against the sexual intercourse is not of any medicolegal value". At any rate, in my view, this sole circumstance would certainly not knock out the entire case of the prosecution, which is based on sufficient and trustworthy evidence, oral circumstantial and medical."
17. Therefore, according to the well-known authority on medical jurisprudence, not much can be derived from the presence of the smegma and the prosecution case cannot be discarded because smegma was found present on the prepuce of the accused.
18. Dr. Daljeet Kaur conducted the medical examination of the victim. She found that labia majora was swollen and tender whereas labia minora was swollen, bruised, tender, and reddish blue. The paraurethral area was swollen, tender, bruised, and reddish-blue and bleeding was present. Hymen was torn posteriorly at the 6 O'clock position. The vaginal swab could not be taken as the child was crying very loudly and she was not allowing the medical officer to take the swab. The victim was aged 2½ years at the time of the incident. Her medical condition clearly shows that there could not have been complete penetration since she was not even allowing the taking of the sample. Hence, the ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 13 presence of smegma will not amount too much in the present case and no advantage can be derived from the same.
19. The victim (PW5) stated that the accused was known as .
Baba. He made her bleed. She identified her private parts from where the blood oozed. She stated in her cross-examination that she had sustained injuries by fall and she got the injury when she was playing. When asked whether Baba had done anything, she refused.
20. to Learned Trial Court held that the cross-examination of this witness made her testimony in her examination-in-chief highly doubtful. In this regard, it is to be noticed that the victim was examined on 23.11.2010. Her cross-examination was deferred at the request of the learned defence counsel and she was cross-
examined on 19.03.2011 giving four months to the accused before she could be cross-examined in violation of the judgment of the Hon'ble Supreme Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712: 2015 SCC OnLine SC 53 wherein it was observed:
5. Be it noted, in the said case, the following passage from Swaran Singh v. State of Punjab [(2000) 5 SCC 668: 2001 SCC (Cri) 190], was reproduced: (Gurnaib Singh case [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49], SCC pp. 121-22, para 28) ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 14 "28. ... '36. ... It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness .
threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes a party to a miscarriage of justice.'" (Swaran Singh case [(2000) 5 SCC 668: 2001 SCC (Cri) 190], SCC p. 678, para 36.)
6. In this regard, it is also fruitful to refer to the authority in State of U.P. v. Shambhu Nath Singh [(2001) 4 SCC 667:
2001 SCC (Cri) 798], wherein this Court deprecating the practice of a Sessions Court adjourning a case in spite of the presence of the witnesses willing to be examined fully, opined thus: (Shambhu Nath Singh case [(2001) 4 SCC 667:
2001 SCC (Cri) 798], SCC pp. 671-72, para 9) "9. We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at a heavy cost to them, after keeping aside their own avocations. Certainly, they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the Presiding Officers of the trial courts and it can be reformed by everyone provided the Presiding Officer concerned has a commitment towards duty." (Gurnaib Singh case [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49], SCC p.
123, para 31) ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 15
21. This position was reiterated in Doongar Singh v. State of Rajasthan, (2018) 13 SCC 741 : (2019) 1 SCC (Cri) 410: 2017 SCC OnLine SC 1391 wherein it was observed:
.
4. In a criminal case of this nature, the trial court has to be mindful that for the protection of witnesses and also in the interest of justice the mandate of Section 309 CrPC has to be complied with and evidence should be recorded on a continuous basis. If this is not done, there is every chance of witnesses succumbing to the pressure or threat of the accused.
5. This aspect of the matter has received the attention of this Court on a number of occasions earlier. In State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798] this Court observed it was a pity that the Sessions Court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of Section 309 CrPC. Once the examination of witnesses begins, the same has to be continued from day to day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded.
This Court observed: (SCC pp. 673-75, paras 12-15, 17 & 19) "12. Thus, the legal position is that once the examination of witnesses starts, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 16 courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds.
Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are .
granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of Section 309 of the Code.
14. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
15. The time frame suggested by a three-judge Bench of this Court in Raj Deo Sharma v. State of Bihar [Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507: 1998 SCC (Cri) 1692] is partly in consideration of the legislative mandate contained in Section 309(1) of the Code. This is what the Bench said on that score: (SCC p. 516, para 16) '16. The Code of Criminal Procedure is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses despite repeated opportunities. Section 309(1) CrPC supports the above view as it enjoins expeditious holding ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 17 of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day.' .
***
17. We believe, hopefully, that the High Courts would have issued the circular desired [Raj Deo Sharma (2) v. State of Bihar, (1999) 7 SCC 604 at p. 614, para 14:
1999 SCC (Cri) 1324] by the Supreme Court as per the said judgment. If the insistence made by Parliament through Section 309 of the Code can be adhered to by the trial courts there is every chance of the parties cooperating with the courts for achieving the desired objects and it would relieve the agony which witnesses summoned are now suffering on account of their non- examination for days.
***
19. In some States a system is evolved for framing a schedule of consecutive working days for examination of witnesses in each sessions trial to be followed. Such a schedule is fixed by the court well in advance after ascertaining the convenience of the counsel on both sides. Summons or process would then be handed over to the Public Prosecutor in charge of the case to cause them to be served on the witnesses. Once the schedule is so fixed and witnesses are summoned the trial invariably proceeds from day to day. This is one method of complying with the mandates of the law. It is for the presiding officer of each court to chalk out any other methods, if any, found better for complying with the legal provisions contained in Section 309 of the Code. Of course, the High Court can monitor, supervise and give directions, on the administration side, regarding measures to conform to the legislative insistence contained in the above section."
6. The above decision has been repeatedly followed.
In Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334: 2002 SCC (Cri) 1734], this Court noted how ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 18 adjournment can result in witnesses being won over. It was observed: (SCC p. 366, para 54) "54. Before parting with the case, we may point out that the Designated Court deferred the cross-examination of .
the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give scope for a grievance that the accused persons get time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of Section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh [State of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667: 2001 SCC (Cri) 798] and N.G. Dastane v. Shrikant S. Shivde [N.G. Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135]. ..."
7. Again in Vinod Kumar v. State of Punjab [Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 : (2015) 2 SCC (Cri) 226 : (2015) 1 SCC (L&S) 712] this Court noted how unwarranted adjournments during the trial jeopardise the administration of justice. It was observed: (SCC p. 227, paras 3-4) "3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognise "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracising the concept that a civilised and orderly society thrives on the rule of law which includes "fair trial" for the accused as well as the prosecution?
4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh v. State of Punjab [Gurnaib Singh v. State of Punjab, (2013) 7 SCC 108 : (2013) 3 SCC (Cri) 49] : (SCC p. 121, para 26) ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 19 '26. ... we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and .
piecemeal manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar Purshottam Mondkar [Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701] wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction.'"
8. In spite of repeated directions of this Court, the situation appears to have remained unremedied. We hope that the Presiding Officers of the trial courts conducting criminal trials will be mindful of not giving such adjournments after the commencement of the evidence in serious criminal cases. We are also of the view that it is necessary in the interest of justice that the eyewitnesses are examined by the prosecution at the earliest.
22. Similar is the judgment in Mukesh Singh vs. State of Uttar Pradesh Special Leave Petition (Criminal) Diary No(s).
8905/2022 decided on 30.09.2022 wherein it was held:
The mandate of law itself postulates that the examination- in-chief followed with cross-examination is to be recorded ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 20 either on the same day or on the day following. In other words, there should not be any ground for adjournment in recording the examination-in-chief/cross-examination of the prosecution witness, as the case may be.
.
23. In the present case, keeping in view the age of the victim, it is difficult to believe that she would have retained the incident as vividly as she would have done on the date of her examination-in-chief. She was subjected to a lengthy cross-
examination and these statements were made by her at the end of her cross-examination. A child of two and a half years deposing in the Court, in a strange atmosphere and being subjected to lengthy cross-examination can become disoriented and her testimony cannot be discarded due to some admissions extracted in her cross-examination conducted after four months.
24. Her brother (PW16) aged seven years stated that Baba came to his house on the date of the incident. Baba gave him ₹ 10/- to purchase toffee. He (the victim's brother) went to a shop near the road. He found the victim and Baba going towards the roadside. Baba told him that he would provide toffies to the victim.
He informed his grandmother about this fact. He stated in his cross-examination that ten toffies were purchased by him. There was no one in the home when he returned to the home. The victim was with him till the return of her mother.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 2125. The testimony of this witness shows that the accused and the victim had gone together after he was sent to purchase the toffies. His statement that the victim was with him has to be read .
with the other part of the statement where he deposed about the victim and the accused going together towards the jungle and no one being present in the home at the time of his arrival. When he categorically stated that the victim had accompanied the accused and there was no one at home at the time of his arrival, his testimony that the victim was with him has to be ignored. There is nothing in his cross-examination to show that he is deposing falsely or he has any motive to implicate the accused; hence, his testimony is accepted as correct and the same will corroborate the victim's testimony in material particulars.
26. Urmila (PW3) stated that she saw an old man going with the small child towards Rajban. She identified the accused as the old man. She stated in her cross-examination that she had not seen the person before the incident. She was not told by anyone that the accused person was the same. Police never called her to identify the accused. She denied that she was making a false statement at the instance of the police or the family members of the victim.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 2227. There is nothing in her cross-examination that she is making a false statement. She saw the accused and the victim together. Keeping in view the age difference between the victim .
and the accused, she would have a lasting impression of the accused and her testimony cannot be discarded because no test identification parade was conducted. Her testimony also shows that the accused and the victim had gone together towards the jungle.
28. The victim's grandmother (PW1) stated that she found the victim missing and asked her daughter about the victim. They went to search for the victim towards the roadside and found the accused coming with the victim from the jungle towards the road.
The accused ran away from the spot after seeing them. They found the accused coming with the victim towards the road. The accused had picked the victim with his arms. He left the victim and ran away towards the jungle. They checked the victim and found that blood was oozing out of her private parts. They informed Ward Panch-Ranjeet, who called the police. She stated in her cross-
examination that she had known the accused for the last 1-2 years because he used to work with her son Sohan Singh on his tractor.
The accused had visited the victim's house all alone. The accused ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 23 had visited her house at about 2-2:30 pm. She had gone towards the cattle shed and could not say about the departure of the accused. The accused was found at a distance of about 20 yards .
from her house. The victim regained consciousness 2-3 days after the incident. The accused left the victim in the bushes near the road.
29. The victim's mother also corroborated her version. She stated that the accused had visited her house on 09.05.2010 at about 3-4 pm. Her mother left at about 3-4 pm to feed grass to the cattle. When she returned, she (the victim's mother) inquired from her about the victim. The victim was not present around the house. She and her mother searched for the victim and saw the accused coming with the victim from the jungle in his arms. The accused left the victim and ran towards the jungle. Blood was oozing out of her private parts. Her clothes were stained with blood. She stated in her cross-examination that she had known the accused for about 1 year. The accused used to work/reside in her in-law's village. The accused remained in the house for about 5-10 minutes and left with the victim. However, she had not noticed the accused taking away the victim. She did not raise any alarm after the accused had left the victim. The victim was with ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 24 them when they went to their house. She denied that a false case was made against the accused.
30. Nothing was suggested to these witnesses in their .
cross-examination as to why they should be deposing falsely against the accused. Both of them stated that the accused had earlier worked in the house of the parents-in-law of the victim's mother. It was not even stated that there was any dispute regarding the work; hence, in these circumstances, their testimonies are to be accepted as correct.
31. In fact, the learned Trial Court has not specifically discarded their testimonies and held that the possibility of the victim getting injured while playing and the accused carrying her with him could not be ruled out. Such a finding could not have been recorded. The accused never claimed that he found the victim in an injured condition and he was carrying her to her home when the witnesses met them. He simply denied the prosecution case in its entirety. When the accused had not stated any such fact, the learned Trial Court could not have stated something on his behalf, that was not even stated by him.
32. Dr Daljeet Kaur (PW9) specifically stated that there were signs of forceful penetration within 12 hours and it could be ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 25 concluded that the victim was subjected to rape. She stated in her cross-examination that the injuries could have been caused by a fall and something entering the vulva. She denied that she had .
prepared the wrong report.
33. Her admission in the cross-examination that the injuries can be caused by a fall and something entering into her vulva is an alternative possibility, which is not supported by any witness. Even the injuries were not found on the rest of the body of the victim showing that she had sustained injuries by way of a fall.
It was laid down by the Hon'ble Supreme Court in Anil Rai v. State of Bihar, (2001) 7 SCC 318: 2001 SCC (Cri) 1009: 2001 SCC OnLine SC 906 that if direct evidence is reliable the same cannot be rejected based on alternative hypothesis. It was observed:
Learned counsel further submitted that as the doctor has stated that the aforesaid injuries were caused by a rifle, the prosecution case cannot be accepted because what was recovered from the appellant Subhash Chand Rai (A-2) was a gun and not a rifle. In his examination-in-chief, the witness stated that the injuries were antemortem and were grievous in nature which were caused by a "firearm". There is no dispute that both guns and rifles are firearms. The expert witness has nowhere stated that such injuries could not be caused by gunshots. It has to be kept in mind that the witness PW 10 was an expert on medical science and not a ballistic expert. Otherwise, also, the opinion of the expert would lose its significance in view of the reliable, consistent ocular testimony of PWs 1, 2, 5 and 6. Such a plea was rejected by this Court in Punjab Singh v. State of ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 26 Haryana [1984 Supp SCC 233: 1984 SCC (Cri) 484: AIR 1984 SC 1233] for two reasons, (1) that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence, and (2) if medical evidence when properly read shows two alternative possibilities but .
not any inconsistency, the one consistent with the reliable and satisfactory statements of the eyewitness has to be accepted.
34. Similar is the judgment in Krishnan v. State, (2003) 7 SCC 56: 2003 SCC (Cri) 1577: 2003 SCC OnLine SC 756 wherein it was held:
21. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including the medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
35. Hence, the prosecution case could not have been discarded on a hypothetical explanation given by the Medical Officer.
36. The clothes of the victim were preserved by the Medical Officer. These were sent for analysis. Result (Ext. PW6/A) shows that the human blood of group 'B' was detected on the underwear, T-shirt of the victim and pyjama of the accused.::: Downloaded on - 10/06/2024 20:30:26 :::CIS 27
37. Ram Kishan (PW8) conducted the blood test of the victim and found that her blood group was 'B'. He denied in his cross-examination that he had not taken the victim's blood or had .
given a false report. He admitted that the victim was not known to him personally, however, this will not make any difference as the victim was accompanying the police who had identified her. The fact that this witness had found the blood group of the victim as B + and the same blood group was found on the pyjama of the accused would corroborate the victim's testimony that he had raped her and that is how the pyjama of the accused was blood stained with Group B blood.
38. The learned Trial Court held that the investigating officer had failed to collect the blood-stained soil to fix the place of the incident. It was held in Karnel Singh vs. State 1995 (5) SCC 518 that the prosecution case cannot be doubted due to the defective investigation because Investigating Officer is not under the control of the complainant and the complainant cannot be penalized for the negligence of the Investigating Officer. It was held:
"4. We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the Investigation Officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the ::: Downloaded on - 10/06/2024 20:30:26 :::CIS 28 attachment of the 'Chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no .
doubt that the investigation was casual and defective. But despite these deficiencies both the Courts below have recorded a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the nature of the investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the Court has to be circumspect in evaluating the evidence but it would not be right to acquitting an accused person solely on account of the defect; to do so would be tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the 'Chaddi'. That is the reason why we have said that the investigation was slipshod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny, we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
39. This position was reiterated in Sudha Ranukanya Vs. State of A.P. 2017 (13) SCC 81 wherein it was held that the Court has to see the prosecution case without taking into consideration the defective investigation or lapses committed by the Investigating Officer. This position was reiterated in Sachin Kumar Singhraha vs. State of Madhya Pradesh 2019 (8) SCC 371, as under:
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 29At this juncture, we would like to recall that it is well- settled that criminal justice should not become a casualty because of the minor mistakes committed by the Investigating Officer. We may hasten to add here itself that if the Investigation Officer suppresses the real incident by .
creating certain records to make a new case altogether, the Court would definitely strongly come against such action of the Investigation Officer. There cannot be any dispute that the benefit of the doubt arising out of major flaws in the investigation would create suspicion in the mind of the Court and consequently, such inefficient investigation would accrue to the benefit of the accused. As observed by this Court in the case of State of H.P. v. Lekh Raj, (2000) (1) SCC 247, a criminal trial cannot be equated with a mock scene from a stunt film. Such trial is conducted to ascertain the guilt or innocence of the accused arraigned and in arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach to administering justice in a criminal trial.
40. Thus, the prosecution case cannot be doubted due to the defective investigation.
41. Therefore, the prosecution had proved by leading sufficient evidence that the accused had raped the victim. Learned Trial Court erred in discarding the prosecution case. It had taken a view, which could not have been taken by any reasonable person based on the evidence and such a view can be interfered with while deciding an appeal against acquittal.
::: Downloaded on - 10/06/2024 20:30:26 :::CIS 30Final Order:
42. In view of the above, the present appeal is allowed. The accused is convicted of the commission of an offence punishable .
under Section 376 of IPC. He has absconded. Appeal is disposed of in the aforesaid terms with direction to the respondent/State to apprehend the accused and produce in the Court for hearing him on the quantum of sentence.
r to (Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
10th June, 2024
(saurav pathania)
::: Downloaded on - 10/06/2024 20:30:26 :::CIS