Jammu & Kashmir High Court
State vs Arjun Singh on 1 September, 2017
Bench: Dhiraj Singh Thakur, Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: Cr. Acq. Appeal No.21/2015
Date of Decision:01.09.2017
State Vs. Arjun Singh
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the appellant(s) : Mr. Ehsan Mirza, Dy. AG.
For the respondent(s) : Mr. Rohan Nanda, Advocate.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No Per:- Sanjay Kumar Gupta-J
1. State is aggrieved of the acquittal earned by Arjun Singh S/o Paras Ram R/o Smailpur, Tehsil & District Samba ( for brevity 'accused') vide impugned judgment dated 30.09.2014 of learned Principal Sessions Judge, Kathua in case FIR No.138/2011 registered in Police Station Bari Brahmana for the offence under Section 376 RPC, therefore, Cr. Acq. Appeal No.21/2005.
2. As per the prosecution, on 15.10.2011 one Vinod Kumar S/o Ram Kirpal R/o Smailpur, Tehsil and District Samba along with his wife lodged an oral complaint with Police Station Bari Brahmana alleging therein that on that day at about 5.30 a.m., his wife had gone out to defecate in the nearby bushes, where Arjun Singh S/o Paras Ram R/o Smailpur, Tehsil & District Samba was hidden, who caught hold of his wife and forcibly committed rape on her and also forcibly snatched away her ear rings. She returned Cr. Acq. Appeal No.21 of 2015 Page 1 of 23 home weeping and narrated about the entire incident to him. He told about the incident to the Sarpanch and other respectable of the village. Upon this oral complaint a case FIR No.138/2011 under Sections 376/382 RPC registered and investigation commenced. During the course of investigation, visited the spot, a site plan prepared, one washed Salwar seized, however, did not sent the same to FSL for chemical examination. The prosecutrix also subjected to medical examination and medical report also collected. The accused also subjected to medical examination in order to ascertain as to whether he is capable to commit sexual intercourse and his medical report also collected. The statement of the prosecutrix under Section 164-A Cr.P.C. got recorded. The statements of other prosecution witnesses also recorded under Section 161 Cr.P.C. The contents of the charge sheet read over and explained to the accused, however, he pleaded not guilty and claimed to be tried.
Accordingly, the prosecution was directed to lead evidence in order to substantiate the allegation levelled against the accused. The prosecution in order to prove the allegation against the accused, produced and examined the prosecutrix, Vinod Kumar, Parshotam Singh, Dr. Manjusha Bajaj, Dr. Jaspreet Singh and Vipan Kumar and prosecution witnesses.
3. The resume of the prosecution evidence is as under:-
PW-1 Prosecutrix stated in examination-in-chief that the accused is known to her. On 15.10.2011 at 5.30 AM as soon as she sat to defecate in the field behind her house, the accused who was hidden in the bushes appeared before her, caught hold of her and having dragged, took her in the field. She was crying, thereafter having caught hold of her by the hands and feet took her little ahead and started undressing her. She again cried where the accused made an attempt to commit "Gallat Kaam" (wrong act) on her, however she got herself freed from the accused. The accused then again caught hold of her by the hand and took her ahead where the accused Cr. Acq. Appeal No.21 of 2015 Page 2 of 23 committed "Gallat Kaam" (wrong act) on her. The accused also grasped her mouth owing to which she sustained marks on her face. The witness has shown such marks in the court. She further stated that she also sustained other marks on her body due to aforesaid act of the accused. She further stated that she became unconscious and later she narrated the above incident to her husband and her husband had told about the incident to his landlord. She alongwith others had gone to the Police Station, Bari Brahmana. She was medically examined at Gandhi Nagar hospital. Her statement was recorded in the court. The police had also recorded her statement.
During cross-examination stated that she has been residing with her husband as tenant at Smailpur for the last four years. The name of her landlord is Parshotam Singh Katal. There are three other Kothies behind the house of Parshotam Singh. The name of the owner of one Kothi is Raju. When she returned from the place of occurrence, Raju was also present in the house of her landlord. She had sustained marks on her feet and back on account of dragging by the accused. The accused had also given slaps on her face. The accused had also given fist blows on her back. Except this she had not sustained any other injury. She got recorded in her statement under section 161 Cr.P.C. that the accused had given lap on her face but this fact has not been recorded by the police. She did not get recorded in her statement under section 161 Cr.P.C. that the accused caused injuries on her back by giving gist blows. Her statement was recorded in the Court on 19th. She did not get recorded in her statement under section 161 Cr.P.C. about grasping of her mouth by the accused. Neither she got recorded under section 161 Cr. P.C. that as soon as she sat in the field to defecate, the accused had grasped her mouth and after having dragged, took her into the other field. Neither she got recorded in her statement under section 161 Cr.P.C. that at the time of dragging by the accused she was crying and by dragging the accused had taken her form one field to 3rd field. She had not Cr. Acq. Appeal No.21 of 2015 Page 3 of 23 told the police that at the time of occurrence the accused after having caught hold of her feet and hand dragged her, however she had stated about these facts in her statement recorded in the Court. When confronted with her statement recorded under section 164-A Cr.P.C. she stated that the fact of dragging her by catching hold of her by feet and hands is not mentioned in her statement recorded before the Court. When further confronted with her statement recorded under section 161 Cr.P.C., she has stated that it has not been mentioned in her statement recorded under Section 161 Cr.P.C. that after having taken her in 3rd field the accused had started undressing her where she cried and accused also attempted to do "Gallat Kaam"
(wrong act) on her, however, she got herself freed. She further stated that she had shown the injuries sustained by her on her body to the doctor and the police had also seized her Salwar and shirt. She does not remember as to whether she got recorded in her statement under section 161 Cr.P.C. that having heard the sound of cough she had started crying for help but the accused had gagged her mouth. She did not become unconscious on spot. She had not given the statement in the court that she had become unconscious on spot, however, after some time she regained consciousness. Sarpanch, landlord, Mohan Papa and her husband had accompanied her to the police station. The report was lodged by her landlord namely Parshotam Singh. The police had recorded the statements of Panch, Sarpanch and Mohan in her presence. The occurrence had taken 10-15 minutes. She had raised hue and cry till she remained with the accused but none had come on spot and second time she had raised hue and cry in the 3rd filed. 3rd time she had raised hue and cry near the Mango tree where the accused had committed "Gallat Kaam" (wrong act) on her. She had stated before the court that she had raised hue and cry in the 1 st, 2nd and 3rd field, however this had not been mentioned in her statement recorded under section 161 Cr.P.C. Her husband is a Gardner, however, she does not know as to what work the accused does. The accused did not work with her husband. The Cr. Acq. Appeal No.21 of 2015 Page 4 of 23 accused and her husband did not work together in a factory for planting saplings. On suggestion by defence counsel she stated that it is incorrect that her husband had taken some money from the accused and the accused had demanded the same from her husband in her presence. On suggestion by defence counsel she further stated that it is also incorrect that the accused used to demand money from her husband in presence of Parshotam Singh and Mohan. She also denied the suggestion made to her by defence counsel that she has cooked a false case against the accused.
PW-2 Vinod Kumar stated in examination-in-chief that the accused is known to him. About one year ago, his wife had gone out in the bushes to defecate. The accused had attacked upon his wife and made her condition miserable. When she returned home she narrated that the accused had committed "Gallat Kaam" i.e. rape on her. He had told about the incident to his landlord and thereafter he had gone to the Panch and the Sarpanch and also lodged a written report with the police. His landlord was also accompanying him. The police had come on spot. The police had also subjected the prosecutrix to medical examination. The ear rings of his wife were missed on spot. The police had also seized the Salwar of his wife. He also proves the seizure memo with respect to the Salwar which is exhibited as ExT-P1. The witness had also identified the said Salwar in the court room which is shown to him by the Public Prosecutor. He also proves the "Parcha Illat" which is exhibited as ExT-P1/1.
During cross-examination stated that the report which was lodged with the police station was written by Parshotam Singh. He too had signed the same, however he did not see the said report in the court. The name of the Sarpanch was Mohan Papa. Panch and Sarpanch had gone with him to the police in order to get lodged the report. He further stated that Panch and Sarpanch had advised him to lodge report with the police, however they had not gone with him to the Police Station. He does not remember as to Cr. Acq. Appeal No.21 of 2015 Page 5 of 23 whether he got recorded in his statement that Panch and Sarpanch had asked him to lodge the report with the police. When the witness confronted with his previous statement, he deposed that this fact has not been mentioned in his statement. The ear rings of his wife were fallen down at the place of occurrence and they were not seized by the police. The police had come on spot after 10 minutes of lodging report. Panch, Sarpanch, Numberdar and Chowkidar were also present on spot when the police came there. He cannot tell as to when the police had seized the Salwar. The packet in which the Salwar was packed was in a open condition which was not sealed on spot. He had produced the Salwar before the police, however he pleaded ignorance as to when he had produced the same before the police. He is a gardener by profession and works at Bari Brahmana in the factory area. He pleaded ignorance as to what work the accused does. It is incorrect that the accused used to work with him in the factory as a gardener in the year 2010-11. On suggestion by defence counsel he stated that it is also incorrect that the accused used to demand Rs.20/25 thousand from him for his work and he (witness) used to dodge him. It is also incorrect that the landlord has told him to make the payment to the accused. It is also incorrect that on account of money he has framed the accused in a false case.
PW-3 Parshotam Singh stated in examination-in-chief that the accused is known to him. The prosecutrix is also known to him, her husband is a gardener, who is his tenant. At the time of occurrence he was in the factory, however in the morning when he returned home his wife told him that behind the house in the bushes the accused had committed rape on the prosecutrix. He too had enquired from the prosecutrix about the occurrence and she too had told him about the occurrence. He had sent the prosecutrix and her husband to the Panch and the Sarpnach. Panch and Sarpanch had gone to the police station with them. The police had come on spot and prepared site plan on spot. The police had also seized the Salwar of the Cr. Acq. Appeal No.21 of 2015 Page 6 of 23 prosecutrix on spot in his presence. The seizure memo ExT-P1 was prepared on spot and he also proves the same. He also identifies the said Salwar in the court room. The police had also recorded his statement.
In cross-examination stated that he had not got recorded in his statement under section 161 Cr.P.C. that a Salwar was seized in his presence. He pleaded ignorance about the color of the Salwar. He further stated that the Salwar which is shown to him in the court room is not in a sealed condition. He has also seen a lady shirt in the packet containing Salwar. He pleaded ignorance as to in which FIR the Salwar was seized. It has not been made mention in his statement recorded under section 161 Cr.P.C. that at the time of occurrence he had gone to the factory and in the morning at 8 AM he had returned to his home. He had made mention in his statement under section 161 Cr.P.C. that his wife had told him about the occurrence. The statement recorded under section 161 Cr.P.C. read over to the witness in the open court but this fact does not find place in the said statement. He got recorded in his statement under section 161 Cr.P.C. that he had sent the prosecutrix and her husband to the Panch and Sarpanch in order to lodge complaint with them, however this fact has not been mentioned in his statement recorded under section 161 Cr.P.C. He also got recorded in his statement under section 161 Cr.P.C that Panch and Sarpanch had gone to the police station alongwith the prosecutrix and her husband in order to lodge report, however this fact has not been mentioned in his statement recorded under section 161 Cr.P.C. The report was got recorded at 12 AM to 1 PM and the police had come on spot after half an hour. He had also signed the site plan. He pleads ignorance as to whether Panch and Sarpanch were kept as witnesses by the police or not, however his wife was kept as prosecution witness by the police. It is correct that husband of the prosecutrix namely Vinod Kumar is working as a gardener. He pleaded ignorance as to whether the accused is a gardener or not. He also pleaded ignorance as to what work the accused does. He pleaded ignorance as to Cr. Acq. Appeal No.21 of 2015 Page 7 of 23 how long the accused had worked with Vinod Kumar as a gardener and how much money the accused had taken from Vinod Kumar.
PW-4 Dr. Manjusha Bajaj, Gynaecologist, stated in examination-in-chief that on 15.10.2011 she was posted as Gynaecologist, Gandhi Nagar Hospital, Jammu and on that date at 2:15 PM she examined the prosecutrix aged 30 years W/o Vinod Kumar R/o Smailpur as a case of rape at 5 AM on 15.10.2011 under MLC No. 1104, brought by ASI Bal Krishan No. 785521 ExJ P/S Bari Brahmana. The alleged victim was having mark of identification a mole on the upper lip (Rt. Side) and on examination the patient was conscious, well oriented to time, place and person. LMP- 1.10.2011, LCB - 3 year back. History of change of clothes. No staining of clothes seen. Few fresh abrasions found on the back of thigh and back. On local examination no mark of injury was seen locally on patient and also no secretion or bleeding seen. Vaginal orifice admits two fingers. P/V Uterus normal size, ante verted, fornices free. Two vaginal smears taken from posterior fornix of vagina and sent for histopathological examination. On investigations (1) Histopathological report H/P report vide Lab.No.19 dated 15.10.2011 Sd/- Dr. S.L. Fotra, A-grade Pathologist showed presence of non-motile spermatozoa. (2). Urine for pregnancy test dated 17.10.2011 shows negative. Enclosures:- 1 OPD ticket with consent for examination. 2. Histopathological report. 3. Docket. 4. Urine for pregnancy test report.
OPINION In her opinion, as evident from the histopathological report, there is evidence of sexual intercourse in the recent past.
The certificate on the file is in her hand writing and bears her signature and is correct, the same is exhibited as ExT-P-5.
In cross-examination by defence counsel stated that she had given her report on the basis of histopathological report and her final opinion is based Cr. Acq. Appeal No.21 of 2015 Page 8 of 23 on the said report. As per her examination, force was not used upon the alleged victim to whom she has examined on 15.10.2011 at Govt. Hospital Gandhi Nagar, Jammu that is why she has written in her report that "no mark of injury was seen locally". She has also mentioned in her certificate that "no secretion or bleeding seen" which means it could be semen or vagina secretions. As per her report there was no semen seen locally at the time of examination of alleged victim. No staining of clothes seen because of the fact that alleged victim had changed her clothes. The injuries found on the alleged victim at the time of examination can be possibly by a fall. The injury mentioned in her certificate could not be possible if anybody is dragged on earth for few meters. As per her opinion with regard to the sexual intercourse in recent past it is elaborate to mention here that no force was used upon the alleged victim and sexual intercourse is also possible with a married woman when cohabited with her husband. The alleged victim was married and her husband's name is Vinod Kumar as per her certificate. The alleged victim was brought by Bal Krishan ASI to the hospital for examination. She does not know whether he was an I.O. or not and he has only brought the alleged victim to the hospital for examination.
PW-5 Dr. Jaspreet Singh, Medical Officer, Emergency Hospital, Vijaypur stated in examination-in-chief that on 05.11.2011 he was posed as Medical Officer, Emergency Hospital Vijaypur and on that day he examined Arjun Singh S/o Paras Ram R/o Smailpur, aged 21 years, brought by Vipan Kumar Sharma, HC No. 88 P/S Bari Brahmana, in case FIR No. 138/2011 under section 376 RPC. On examination Pallor/icterous/cyanosis- Nil, plus-74/m, BP-110/70 mmhg, weight 55 kg, Ht. 5'7". No cervical, axiallery lymphadenopathy, JVP not traced, no pedel edma, chest - BLAE+, CVS-S1, S2 present. P/A soft, non-tender, non distended, B/S+. Pubic and axiallary hair pattern in normal. Testis and genitalia are normal.Cr. Acq. Appeal No.21 of 2015 Page 9 of 23
On examination of the above mentioned person whose thumb impression is attested on the certificate, there is no evidence at present to suggest that he is not capable of performing the sexual act. The certificate on the file is in his hand writing and bears his signature and is correct, the same is exhibited as Ext-P4.
On cross-examined by defence counsel stated that he had mentioned in his certificate the details given above. He has mentioned Pallor/icterous/cyanosis in his certificate which is exhibited as ExT-P4. He has also mentioned cervical, axiallery lymphadenopathy in his certificate. He has not put his initials on the cutting on 55 but witness stated that this is not cutting. He has only mentioned with regard to sexual act and not more than this in his certificate. He has mentioned in his certificate that the person is competent to perform sexual intercourse but from the perusal of the certificate no such word has been mentioned but it is mentioned in his certificate that the accused was capable to perform sexual act.
PW-6 Vipan Kumar (I.O.) stated in examination-in-chief that on 15.10.2011 he was posed at P/S Bari Brahmana. The accused is known to him. The investigation of the case FIR No. 138/2011 offence under sections 376/382 RPC was entrusted to him. The prosecutrix was medically examined at Govt. Hospital Gandhi Nagar with respect to rape. He had also prepared the site plan at the place of occurrence at the instance of the prosecutrix. He had also seized a salwar which was produced by the prosecutrix on spot. He had recorded the statements of the prosecutrix and other prosecution witnesses. The prosecutrix had told that her two ear rings were found at the place of occurrence. Later on, the statement of the prosecutrix was also got recorded under section 164.A Cr.P.C. After committing the occurrence, the accused had absconded, however he was arrested on 24.10.2011. The accused was also subjected to medical examination at Govt. Hosptial Vijaypur in order to ascertain as to whether Cr. Acq. Appeal No.21 of 2015 Page 10 of 23 he was capable to perform sexual intercourse. As per his investigation, the offence under section 376 RPC was proved against the accused. The witness also proves the aforesaid site plan which is exhibited as ExT-P6. He also proves the seizure memo with respect to the Salwar i.e. ExT-P1. He also identifies the Salwar which was seized on spot.
During cross-examination stated that the Salwar which is shown to him is in an open condition. The string of the Salwar which is shown to him is not in a torn condition. Except Salwar no any other wearing apparel of the prosecutrix was seized. He had not seized the underwear of the prosecutrix. The prosecutrix had washed her Salwar before registration of the case. The place of occurrence is stony. It is correct that the Salwar was produced before him by the prosecutrix at the place of occurrence. In the statement of the prosecutrix under section 161 Cr.P.C. it has not been mentioned that the aforesaid Salwar was presented by her before him at the place of occurrence. It has not been mentioned in the statement of PW Parshotam Singh recorded under section 161 Cr.P.C that in his presence the prosecutrix had presented the Salwar before the I.O. and he had seized the same. He had not sealed the Salwar at the time of its seizure as it had already been washed by the prosecutrix and so he had not sent the same to the FSL for chemical examination. It has not been mentioned in the site plan (ExT-P6) that it was prepared at the instance of the prosecutrix. Further stated that at serial No.4 of the site plan he has shown the bushes and at serial Nos. 2 and 3 of the site plan, the place of occurrence has not been shown. Further stated that serial No.3 is at a distance of 50 meters from the place of occurrence and Serial no.2 is at a distance of 45 meters from the place of occurrence. Mango tree has not been shown at serial No.1 of the site plan. On suggestion by the defence counsel he further deposed that the prosecutrix has not stated in her statement under section 161 Cr.P.C. that as soon as she sat in the field to answer nature's call, the accused grasped her mouth and having dragged, took her in a field, she was Cr. Acq. Appeal No.21 of 2015 Page 11 of 23 crying, thereafter the accused caught hold of her by hand and feet and took her in the 2nd field where he attempted to undress her and also made an attempt to commit "Gallat Kaam" on her, however she got released herself from the clutches of the accused. On suggestion by the defence counsel he further stated that it has not been mentioned in the statement of the prosecutrix recorded under section 161 Cr.P.C. that on account of grasping her mouth she had sustained marks. Further stated that it has also not been mentioned in her statement recorded under section 161 Cr.P.C. that she had sustained marks on her body and become unconscious. It is incorrect that Parshotam Singh Katal (landlord of the prosecutrix) had lodged a written report at the police station. It has not been mentioned in the statement of the prosecutrix that the accused had given a slap on her ace. It has also not been mentioned in the statement of the prosecutrix that the accused had also given fist blows on her back. He has not mentioned in the site plan as to where the prosecutrix had sat to answer nature's call and from there where she was taken by the accused by dragging. It has not come in the statement of the prosecutrix that having gagged her mouth, the accused had dragged her by holding her hands. It has not come in the statement of the prosecutrix that she was crying till the accused had remained with her but having heard her cries none had come on spot. He had not filled up the injury sheet of the prosecutrix as apparently there was no any injury mark on her body. The case was registered at 12.10 PM and on the same day he had gone on spot at 1.10 PM. In the statement of Parshotam Singh recorded under section 161 Cr.P.C. it has not been mentioned that at the time of occurrence he had gone to factory in order to attend work. It has not been mentioned in his statement that when he came back the prosecutrix had told him about the occurrence. It has not been mentioned in the statement of Parshotam Singh recorded under section 161 Cr.P.C. that when prosecutrix and her husband came to him, he had advised them to approach Panch and Sarpanch and lodge a report. It has not been mentioned in the statement of Cr. Acq. Appeal No.21 of 2015 Page 12 of 23 Parshotam Singh that Panch and Sarpanch had gone to the police station with the prosecutrix in order to lodge the report. He had not recorded the statements of the Panch and the Sarpanch. He had not recorded the statements of the persons who reside adjacent to the house of the prosecutrix where she was putting up at the time of occurrence. PW Vinod Kumar has not stated that he himself had produced the Salwar at the police station.
This is the entire prosecution evidence on record.
4. After having closed prosecution evidence, the incriminating material appearing in the prosecution evidence put to the accused and his statement under section 342 Cr.P.C recorded. While pleading innocence, the accused has stated that on account of enmity the prosecution witnesses have given false and baseless statements against him. He further stated that he has been implicated in a false and baseless case as the husband of the prosecutrix had taken some money from him and he used to dodge him and did not repay the same and in this connection he had also approached the respectable of the village Smailpur. The accused also preferred to lead defence evidence and in his defence, he examined Balwant Singh, Dilawar Singh and Deep Sharma as defence witnesses.
The resume of the defence evidence is as under:-
DW-1 Balwant Singh stated that on 15.10.2011 he was the Sarpanch of the village Smailpur. The accused is known to him as he resides in his village. The accused is a gardener etc. He had heard that the accused used to work with Vinod Kumar as a gradener. None had come to him to complain against the accused on 15.10.2011. Neither he had gone to P/S Bari Brahmana with Vinod Kumar and the prosecutrix in order to get a report lodged. The police had not recorded his statement.Cr. Acq. Appeal No.21 of 2015 Page 13 of 23
In cross-examination stated that Parshotam Jogi is known to him and Vinod Kumar is his tenant. The wife of Vinod Kumar is not known to him. On 15.10.2011 he was present at his home. His house is at a distance of 100 yards from the house of Parshotam Jogi. He pleaded ignorance as to whether something had happened with the wife of Vinod Kumar or not. He also pleads ignorance as to whether the accused had committed "Gallat Kaam" on the wife of Vinod Kumar or not.
DW-2 Dilawar Singh stated in examination-in-chief that the accused is known to him who resides in his village. PW Parshotam Singh is also known to him. He too resides in his ward. The Sarpanch of his Panchayat is Balwant Singh. PW Vinod Kumar and his wife reside in the house of Parshotam Singh as tenant. Vinod Kumar and his wife had not come to him to complain against the accused on 15.10.2011. Neither he had gone to the police station alongwith Vinod Kumar and his wife in order to get report lodged against the accused. PW Vinod Kumar is a gardener. Prior to 2010 the accused was also working as a gardener with Vinod Kumar. A false case has been cooked up against the accused as the accused had to take money from Vinod Kumar and in this regard the accused had approached him and Sarpanch twice/thrice. The Sarpanch had sent the accused to the house of Vinod Kumar, however Vinod Kumar was dodging the accused to repay the money. There are many residential houses near the house of the prosecution. It is correct that all people of village Smailpur defecate in open.
During cross-examination stated that his house is 200-250 yards away from the house of Parshotam Singh. He does not know as to from where the prosecutrix and Vinod Kumar hail, however they are outsiders. The house of the accused is 200 yards away from his house. On 15.10.2011 he was present at his home. The accused had not committed any "Gallat Kaam" on the prosecutrix.Cr. Acq. Appeal No.21 of 2015 Page 14 of 23
DW-3 Deep Sharma stated that the accused is known to him who resides near his house at Smailpur. Vinod Kumar and his wife are also known to him. In year 2011 he was working in a factory. The accused was also working as a gardener in a factory with Vinod Kumar. The accused had to take Rs.3500/- from Vinod Kumar as he had worked in a factory as a gardener. On account of said money, Vinod Kumar in connivance with Parshotam Singh through his wife cooked up a false case against the accused.
During cross-examination stated that on 15.10.2011 the police had come in the village and enquired from the villagers. It is incorrect that the accused had committed rape on the prosecutrix. Neither he had heard hue and cry of any one. Had there been any hue and cry, the people residing nearby would have heard the same. The accused resides 60/70 feet away from his house. The Sarpanch of the village is Balwant Singh whereas the Panch of Parshotam Singh's ward is Dilawar Singh. He himself had seen the accused while working in the joinery saw mill with Vinod Kumar.
5. Heard learned counsel for the appellant-State as also learned counsel for the respondent-accused.
6. The learned trial Court after appreciating the entire case, observed that though the prosecutrix had deposed that the accused after having dragged her in the fields had committed "Gallat Kaam" (wrong act) on her but she has no where deposed that the accused had actually performed sexual intercourse on her. She has simply deposed that the accused had committed "Gallat Kaam" on her. In other words, the prosecutrix has not given vivid details of the "Gallat Kaam". It is not prudent to infer from the testimony of the prosecutrix that "Gallat Kaam" means rape.
7. The learned trial Court has further disbelieved the statement of PW Vinod Kumar on the ground that it has not come in his statement that the Cr. Acq. Appeal No.21 of 2015 Page 15 of 23 prosecutrix had given the vivid detail of the "Gallat Kaam" to him. Court below has also held that testimony of PW Parshotam Singh does not reveal any where that the accused had committed rape on the prosecutrix. It is not clear even from the testimony of PW Parshotam Singh as to what was told by the prosecutrix to him about the alleged incident. Court below further held that PW Dr. Manjusha Bajaj, who examined the prosecutrix, has opined that there is evidence of sexual intercourse in recent past but admittedly the prosecutrix is a married lady, as such, possibility of enjoying sexual intercourse with her husband prior to the alleged incident could not be ruled out. That Dr. Majusha Bajaj has also stated that injuries mentioned in the report could not be possible by dragging on earth and aforesaid injuries could be possible by fall. Court below has also observed that immediately after the alleged incident, the Salwar which the prosecutrix had worn at the time of alleged incident was washed by her prior the lodging of the report with the police and prosecution has failed to give any explanation in this regard as to what prompted the prosecutrix to wash the said Salwar immediately after the alleged occurrence. Court further held that facts of dragging of prosecutrix by the accused on the stony and dry ground in three fields owing she had sustained injuries in her body is belied by PW Vipan Kumar I.O. who has deposed that apparently there was no injury marks on the body of the prosecutrix and so he did not fill the injury form of the prosecutrix.
8. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in AIR 2014 SC 2200 in case titled 'Muralidhar alias Gidda & anr. v State of Karnatka' [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which reads as under:-
10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and Cr. Acq. Appeal No.21 of 2015 Page 16 of 23 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 of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
Cr. Acq. Appeal No.21 of 2015 Page 17 of 23(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
In 'Ghurey Lal v State of U.P.' (2008) 10 SCC 450, the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.
9. In case of rape, Apex court has held in AIR 2012 (SC) 2281 in case titled "Narinder Kumar vs. State (NCET of Delhi)" as under:-
Cr. Acq. Appeal No.21 of 2015 Page 18 of 23"para 23. the court while trying an accused on charge 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.
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 rape case the victim and other witness have falsely implicated the accused.
24. 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 record, he cannot be convicted for an offence. There is an initial presumption of innocence of accused and the prosecution has brought home the guilt against he accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt. Prosecution has to prove its case beyond reasonable doubt and take support from weakness of case of defense. There must be proper legal evidence and material on record to record the conviction of accused. Conviction can be based on sole testimony of Prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept version of Prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and story projected by Prosecutrix is found to be improbable the prosecution case is liable to be rejected."
10. Further, Court has to see probabilities of facts mentioned by victim especially in offences against woman on touchstone of legal principles in Cr. Acq. Appeal No.21 of 2015 Page 19 of 23 order to come to conclusion as to whether facts mentioned are proved or not proved or disproved in term of section 3 of evidence act. The statements of other witnesses are only for corroboration purpose.
11. The only question that arises for our consideration in this acquittal appeal is, whether the trial Court was justified in doubting the credibility of prosecution case as projected during trial. The criminal jurisprudence, enshrines that in criminal case prosecution has to prove his case beyond reasonable doubts. Highest burden of proof in a criminal case, placed normally on the prosecution. Because under common law the accused is presumed innocent, his or her guilt must be proven to the entire satisfaction of the court .
12. The courts while appreciating the evidence in criminal cases have to see the decree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused Court should not go on convicting the accused.
13. In present case, prosecutrix is major and married lady. Testimony of a woman having attained majority and who is habitual to sexual intercourse may require corroboration depending on facts of a particular case as there is likelihood of leveling accusation of rape on account of instinct of self preservation. There is easy to level accusation of rape but difficult to prove. PW prosecutrix has stated that on 15.10.2011 at 5.30 AM as soon as she sat to defecate in the field behind her house, the accused who was hiding in the bushes appeared before her, caught hold of her and having dragged, took her in the field. She cried, thereafter accused caught hold of her by the hands and feet took her little ahead and started undressing her. She again cried where the accused made an attempt to commit "Gallat Kaam" (wrong act) on her; however she got herself freed from the accused. The accused then again caught hold of her by the hand and took her ahead where the accused committed "Gallat Kaam" (wrong act) on her. The accused also Cr. Acq. Appeal No.21 of 2015 Page 20 of 23 grasped her mouth owing to which she sustained marks on her face .She further stated that she also sustained other marks on her body due to aforesaid act of the accused. She further stated that she became unconscious and later she narrated the above incident to her husband and her husband had told about the incident to his landlord. So bare perusal of this part of evidence it is evident that there is no eye witness. Law is well settled the prosecutrix cannot be termed as accomplice.
14. Prosecutrix has been examined on same day by PW Doctor Manjusha Bajaj, although she has stated that there are of sexual intercourse, but she has categorically stated that injuries mentioned cannot be caused by dragging. In this way, story of dragging become falsified. The vaginal smear slides also do not show presence of non motile spermatozoa.
15. Next the wearing salwar of prosecutrix at the time of occurrence has been washed by prosecutrix before lodging of FIR as per I/O. There is no explanation with regard to washing of salwar before lodging of FIR. I/O has seized salwar produced by victim on spot; but this salwar has neither been sealed nor sent to FSL for examination; so simple seizure of salwar is of no consequence. I/O has stated that as the salwar was washed by prosecutrix, so he neither sealed the salwar nor sent to FSL. This is not proper conduct of I/O. Further I/O has not seized undergarment of prosecutrix which she was wearing at the time of occurrence.
16. FIR in the case has been lodged by PW Vinod Kumar orally on 15.10.2011, when he had gone with prosecutrix, his wife, to police station. When prosecutrix herself had gone in police station, then why report was not lodged by her. Further this FIR has been sent to court on 17. 10.2011, i.e. after two days of occurrence. There is no explanation of delay in sending report to Court.
Cr. Acq. Appeal No.21 of 2015 Page 21 of 2317. I/O Vipin Kumar has stated that it has not come in the statement of the prosecutrix that having gagged her mouth, the accused had dragged her by holding her hands. It has not come in the statement of the prosecutrix that she was crying till the accused had remained with her but having heard her cries none had come on spot. I/O has further stated that he had not filled up the injury sheet of the prosecutrix as apparently there was no any injury mark on her body. So I/O has fabricated the fact of injuries sustained by the victim due to dragging.
18. In this way there is no corroboration of version put forth by prosecutrix from medical evidence and I/O.
19. PW Parshotam Singh has stated that his wife told the accused has committed rape with prosecutrix; he is thus hearsay witness.
20. Further in cross examination prosecutrix has stated that Sarpanch, landlord, Mohan Papa and her husband had accompanied her to the police station. The report was lodged by her landlord namely Parshotam Singh. The police had recorded the statements of Panch, Sarpanch and Mohan in her presence. But in FIR there is no mention of presence of these persons and even there is any written report lodged by PW Parshotam Singh. The prosecution has, thus, concealed the fact of lodging of written report by PW Parshotam Singh.
21. Law is also clear that defence witness has also same value to that of prosecution witness. DW Balwant Singh Sarpanch has stated that no one came to him against accused with regard to incident of 15.10.2011. PWS Deep Sharma and Dilawar Singh have categorically stated that false case has been made as accused had to take money from husband of prosecutrix Vinod Kumar, who was dodging to pay money.
22. In view of what has been discussed above, we do not find any perversity of law and facts in the judgment of court below. In arriving at conclusion Cr. Acq. Appeal No.21 of 2015 Page 22 of 23 about guilt of accused charged with heinous crime, the Court has to judge the evidence by yardsticks of probabilities. The law does not permit the Court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. There is inevitably long distance to travel between 'may be true' and 'must be true'. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
23. Thus, following the well known cardinal principles of law in appreciating the facts in case of rape, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record.
24. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.
( Sanjay Kumar Gupta ) ( Dhiraj Singh Thakur )
Judge Judge
Jammu
01.09.2017
Narinder
Cr. Acq. Appeal No.21 of 2015 Page 23 of 23