Punjab-Haryana High Court
Subhash vs State Of Haryana And Others on 7 November, 2012
Author: Rameshwar Singh Malik
Bench: Jasbir Singh, Rameshwar Singh Malik
CRM A-397-MA of 2012 1
PUNJAB & HARYANA HARYANA HIGH COURT AT
CHANDIGARH
CRM A-397-MA of 2012
Date of decision:07.11.2012
Subhash
...Applicant
Versus
State of Haryana and others
...Respondent(s)
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr.Vishal Sharma, Advocate,
for the applicant.
RAMESHWAR SINGH MALIK, J.
The instant application under Section 378 (4) of the Code of Criminal Procedure (`Cr.P.C.' for short), has been filed by the applicant, seeking leave to file appeal against the judgment of acquittal dated 30.3.2012.
The applicant moved an application against accused- respondents with the allegations that his minor daughter was enticed away by the accused. However, in order to avoid repetition and also for the sake of brevity, it would be appropriate to refer to the facts noted by the learned trial Court, which read as under:-
"2. It is the case of the prosecution that one Subhash son of Dani Ram, father of the victim moved an application to police on March 28, 2009, interalia detailing about the circumstances when his minor daughter of fourteen years of age was allegedly enticed away. He detailed that his CRM A-397-MA of 2012 2 daughter is a student of ninth class in Hindu Vidhya Mandir High School, at Sonepat. He is resident of village Kalupur and is running a Kriyana shop. On March 26, 2009 he and his family had dozed to sleep at about 9 p.m. In the morning at about 6 a.m. when he woke up he found his daughter Anjli missing. On search she could not be traced. Complainant also informed the police that one Rinku son of Jai Narayan, resident of village Kalupur now resident of Tara Nagar Sonepat, used to make advances towards his daughter. He has once lodged a protest to his father, who had promised to desist his son. Now Rinku was also not available at home therefore, he has every reason to suspect that his daughter has been enticed away by Rinku aforesaid.
3. A case for alleged commission of offence punishable under Section 363, 366 of the Indian Penal Code was therefore lodged. The matter was investigated. During the course of investigation it was revealed that Neeraj son of Jai Singh friend of Rinku and Surender Pal @ Garauv son of Sant Ram the driver of the Van in which the victim was kidnapped were also involved in the crime. They were arrested in this case on May 21, 2009. However, accused Rinku could not be traced and was initially declared a proclaimed offender.
a) During the course of further investigation complainant made a supplementary statement to the police on September CRM A-397-MA of 2012 3 24, 2010 and informed the police that Bimla mother of Rinku and Jai Narain father of Rinku as well as Satish brother-in-
law of Rinku and Ravi all were also involved in the crime who were then arrested in this case on September 25, 2010.
b) During the course of further investigation on October 21, 2010 accused Rinku was arrested in this case and victim of the crime was recovered from his possession. Both victim and accused were subjected to medico-legal examination. Statement of the prosecutrix was got recorded before the court of Area Magistrate under Section 164 of the Code of Criminal Procedure as well by police. She was then handed over to her parents. Opinion qua age of the victim was sought. Since she was found to be a minor, offence under Section 376 of the Indian Penal Code was added.
c) During the course of further investigation one Vickey @ Vikas brother of Rinku was also found involved in the crime and offence under 216 of Indian Penal Code was added.
d) On completion of investigation total five accused namely, Neeraj, Surender, Rinku, Vikas & Ravi were challaned to face trial for the commission of the alleged crime whereas accused Bimla wife of Jai Narain, Jai Narain son of Inder and Satish son of Suresh Kumar were not found involved in the crime."
After carrying out a detailed investigation, as noted above, CRM A-397-MA of 2012 4 report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction. The relevant documents were supplied to the accused, in accordance with law. The offences punishable under Sections 366 and 376 of Indian Penal Code (`IPC' for short), having been found to be exclusively triable by the court of session, the case was committed by the learned Magistrate for trial, to the court of session. However, charge was framed only against the accused-respondent Rinku for the offences punishable under Sections 363, 366 and 376 IPC. He pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined as many as 19 prosecution witnesses, besides tendering the relevant documents in its evidence. After conclusion of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Entire incriminating material brought on record was put to the accused. He alleged false implication and pleaded innocence. However, the accused did not lead any evidence in his defence.
After hearing both the parties and appreciating the evidence brought on record, the learned trial Court vide its impugned judgment of acquittal dated 30.3.2012, held that prosecution has failed to prove its case. The prosecutrix eloped with the accused on her own and it was a case of consent.
Feeling aggrieved against the impugned judgment, the applicant has approached this Court by way of instant application. That is how, this Court is seized of the matter.
Learned counsel for the applicant has vehemently contended CRM A-397-MA of 2012 5 that the prosecution has duly proved its case beyond doubt by leading cogent and convincing evidence. He further submits that since the learned trial Court has failed to appreciate evidence in the right perspective, impugned judgment was liable to be set aside.
Having heard the learned counsel for the applicant, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that the present one is not a fit case for granting leave to file an appeal against the judgment of acquittal. The reasons are more than one, which are being recorded hereinafter.
In a case of this nature, the prosecutrix is always a star witness. Nobody would be in a position to give better evidence than the prosecutrix herself. However, in the present case, right from the day one, the prosecutrix had been a consenting party. She did not implicate the accused in her statement Exh.D1 recorded by the police under Section 161 Cr.P.C., nor did she implicate the accused in her statement recorded under Section 164 Cr.P.C., when she claimed her age to be of 14 years. It has come on record in the statement of prosecutrix as PW-1, that the accused-respondent was known to her for two years before the date of occurrence. He was her neighbourer. He used to live in a rented accommodation in front of her house.
Testimony of the prosecutrix clearly shows that she left her house on her own will to go with the accused. She had undesirable relations with the accused for two years even before the date of occurrence, as he was her neighbourer. Both of them were on talking CRM A-397-MA of 2012 6 terms with each other. Parents of the accused planned his marriage some where else because of which, they planned to run away from home. In furtherance of their common intention, prosecutrix left her house at Sonepat on 26.3.2010, at about 11.30 p.m. She was taken away by the accused to bus stand of Delhi in van. Then, both of them went to Saharanpur in Uttar Pradesh. They started residing in village Dinarpur, where they disclosed themselves as Rahul and Pooja. They lived as husband and wife. They stayed at village Dinarpur for about 1 ½ years.
It was further deposed by the prosecutrix that while staying in village Dinarpur, the accused used to do labour work and the prosecutrix used to stay at home. She had good relations with the land- lord as well as with the neighbourers. She never made any effort to inform her parents regarding any alleged kidnapping or anything done against her wishes. A cumulative effect of the facts given by the prosecutrix herself leaves no manner of doubt that she had gone with the accused with her own sweet will. In such a situation, other evidence led by the prosecution pails into insignificance. In view of the above, this Court feels no hesitation to conclude that the prosecution has failed to prove its case.
Similarly, the medical evidence also do not support the case of the prosecution. Further, no conclusive evidence could be brought on record about the definite age of the prosecutrix. While getting her statement recorded under Section 161 Cr.P.C, she claimed her age to be of 17 years, whereas while appearing before the Court, as PW-1, she stated that she was about 14 years at the time of commission of offence. CRM A-397-MA of 2012 7 However, the Radiologist found her age between 16 to 17 years. Thus, the learned trial Court has rightly come to the conclusion that no case was made out against the accused.
The learned trial Court has recorded cogent finding before coming to the conclusion and the same read as under:-
"24. Law is settled on the point that sex with a women of above 16 years of age on promise of marriage with her consent is not rape as has been so held by the apex court of the land in a recent case titled K.P.Thimmappa Gowda Vs. State of Karnataka 2011 (1) CCJ 412. Hon'ble Punjab & Haryana High Court in some what similar circumstances in case Om Pal Vs. State of Haryana 2008(2) RCR (Criminal) 411, has observed that prosecutrix offered no attempt to escape or offer any resistance. There was no injury on the person of the prosecutrix. As per the certificate she was more than 16 years of age, Hon'ble High Court observed that prosecutrix was probably a consenting party to the act.
Absolutely similar is the situation obtaining in our case. Here the victim had eloped with accused and had sexual intercourse with him. The prosecutrix was of the age of sixteen years. She has full knowledge and import of her act. She has remained with the accused at a place called Dinarpur in District Saharanpur (U.P.). She has stayed with the accused in a rented house for about one and half year as CRM A-397-MA of 2012 8 husband and wife. She has ample opportunity and time to inform the police or other person about her alleged kidnapping or rape but there was no attempt on her part. All these facts coupled with the medical evidence as Dr. Anuradha (PW19) has examined the victim and has not found any marks of injury on her private parts, clearly reveal that the prosecutrix was consenting party. Her silence at every occasion clearly import her will of joining the company of accused as she has left her house in presence of all her family members in the midnight and has joined the accused. She then eloped with him to Saharanpur (U.P.). The story put forth by the victim that she has so done under the threat of the accused is found to be quite improbable as the accused was not carrying any weapon. The victim had ample time to disclose to several persons, her landlord and neighbour in U.P. If she was under threat but there was no such attempt on her part. What can be inferred in the given circumstances is that the version of the prosecution is not probable, rather, the girl has eloped with the accused and she was consenting party to the entire act.
25. In a recent case before Hon'ble Punjab & Haryana High Court in case Dharmender and others Vs. State of Haryana 2010(3) RCR (Criminal) 179, the victim of the crime was less than 18 years. She was allegedly kidnapped and raped. From her medical examination no injury was CRM A-397-MA of 2012 9 found on her person. She was taken at Saharanpur (U.P.) by bus. She stayed at village Dinarpur and she never raised complaint to anybody regarding her kidnapping. There was no injury found on her person. In all these facts Hon'ble Punjab & Haryana High Court observed that where a minor leaves her father's protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused persons, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Some more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. Hon'ble High Court further observed that prosecutrix who was more than 17 years old had knowledge and capacity of having full import of what she was doing. In these circumstances it was held that she was not taken away from keeping of lawful guardianship rather it was held to be a case when prosecutrix was a consenting party to the act and accused were acquitted."
Learned counsel for the applicant failed to point out any glaring illegality in the impugned judgment, so as to convince this Court to take a different view than the one taken by the learned trial Court. It is the settled proposition of law that whenever two views are possible, the view which goes in favour of the accused, is to be followed by the Court. CRM A-397-MA of 2012 10
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in the case of Arulvelu & anr. vs. State represented by the Public Prosecutor and anr. 2009(4) RCR (Crl.) 638. The relevant observations made by the Hon'ble Supreme Court in para Nos.39, 40 and 41 in the case of Arulvelu's case (Supra) read as under:
In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.CRM A-397-MA of 2012 11
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached
- one that leads to acquittal, the other to conviction -
the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 again examined judgments of this Court and laid down that "An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. CRM A-397-MA of 2012 12
The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
In `Mrinal Das & others, V.The State of Tripura', 2011(9) SCC 479, decided on September 5, 2011, the Hon'ble Supreme Court, after referring to many earlier judgements, has laid down parameters, for interference against a judgement of acquittal, by observing as under :-
An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed." Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious CRM A-397-MA of 2012 13 consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction CRM A-397-MA of 2012 14 between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
No other argument was raised.
Considering the totality of facts and circumstances of the present case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the prosecution has miserably failed to prove its case beyond reasonable doubt. The learned trial Court has not committed any error of law while passing the impugned judgment of acquittal. No patent illegally or perversity has been pointed out, which is sine qua non to interfere in a judgment of acquittal. No case for interference has been CRM A-397-MA of 2012 15 made out.
Resultantly, the present application stands dismissed.
(JASBIR SINGH) (RAMESHWAR SINGH MALIK)
JUDGE JUDGE
07.11.2012
mks