Himachal Pradesh High Court
State Of H.P vs Guman Singh on 4 January, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. Appeal No. 477 of 2009
Reserved on: 29.12.2017.
Decided on : 04.01.2018.
.
__________________________________________________________
State of H.P. .....Appellant
Versus
Guman Singh ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No
For the appellant: Mr. J.S. Guleria, Assistant,
Advocate General.
.
For the respondents: Ms. Anita Dogra and Mr. Anil
Kumar Manget, Advocates.
_______________________________________________________________
Tarlok Singh Chauhan, Judge:
By medium of this appeal, the State has assailed the judgment dated 4.5.2009 passed by the learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. in Sessions Trial No. 9-N/7 of 2008, whereby the respondent has been acquitted of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code.
1Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...2...
2. The story of the prosecution has been correctly .
reproduced by the learned trial court, therefore, the same is extracted as it is from the impugned judgment.
3. The brief facts of the case are that on 12.2.2008, the prosecutrix (PW-4) alongwith Vinta Devi (PW-2) were present in their house situated at Village Manal, whereas Bansi Ram (PW-1) father of the prosecutrix alongwith his wife had gone to Village Jarwa. The prosecutrix at about 4.00 p.m. went to her field in order to bring grass and at that time the respondent came there and told the prosecutrix that he would get her employed in a factory and would also arrange a good boy for her marriage and asked the prosecutrix to accompany him, at which the prosecutrix told the respondent that she had to inform her parents, but the prosecutrix was taken away forcibly by the respondent to Meenus through a forest and on the way Guman Singh (PW-3) met both of them and thereafter the prosecutrix was taken to Vikas Nagar by the respondent and from there to village falling in Haryana where the respondent had taken a quarter on rent. The prosecutrix stayed with the respondent in his quarter and on the night of 14.2.2008 the respondent committed forcible sexual intercourse with the prosecutrix after ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...3...
catching hold of her both arms and the prosecutrix though .
raised cries but no one came to rescue her.
4. It has come in evidence that on the next day the respondent told the prosecutrix to send her back to her village and took the prosecutrix to Indri and in the meantime when the prosecutrix did not return to her house on 12.2.2008 then on the next day Vinta Devi (PW-2) the sister-in-law of the prosecutrix narrated the occurrence to Bansi Ram (PW-1) the father of the prosecutrix when he returned to his house.
Thereafter, search was conducted for the prosecutrix by Bansi Ram (PW-1) in the village as well as in his relations, but to no avail and therefore he reported the matter to the police on 14.2.2008. Bansi Ram (PW-1) came to know from Guman Singh (PW-3) that the prosecutrix alongwith the respondent was seen going towards Nainidhar and on 16.2.2008 when ASI Parveen Rana (PW-16) the then Investigating Officer, Police Station, Shillai reached at village Rohnat alongwith other police officials in the search of the prosecutrix then Bansi Ram (PW-1) got recorded his statement Ext.PW-1/A which was forwarded to Police Station through Constable Ramesh, on the basis of which FIR Ext.PW-14/A came to be recorded at Police Station, Shillai ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...4...
by SI Jeet Singh (PW-14) the then SHO, P.S. Shillai. On coming .
to know that the prosecutrix was seen with the respondent, the police officials went to the house of the respondent and came to know on inquiry from the father of the respondent that the respondent had left for his job at Indri and thereafter ASI Parveen Rana (PW-16) alongwith Bansi Ram (PW-1), Jeet Singh (PW-6) and Sher Singh went to Indri and at the bus stand, Indri, the prosecutrix and the respondent were found standing there.
The father of the prosecutrix identified her on the basis of which site map Ext.PW-16/B was prepared.
5. The further case of the prosecution is that the prosecutrix was handed over to Bansi Ram (PW-1) vide memo Ext.PW-1/B and her medical examination was conducted by Dr. Meenakshi (PW-5), Medical Officer, Civil Hospital, Shillai on 17.2.2008 and as per her opinion there was nothing suggestive that sexual intercourse had not been performed regarding which MLC Ext.PW-5/B was issued by her. The Medical Officer also preserved the clothes of the prosecutrix comprising salwar Ext.
P-1 and underwear Ext.P-2 and she also prepared vaginal smear slides and took sample of pubic hair of the prosecutrix and handed over the same to the police for chemical examination.
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The prosecutrix was referred to Regional Hospital, Nahan for .
radiological opinion for age estimation and as per opinion of radiologist, the age of the prosecutrix was found between 16 to 18½ years.
6. It has also come in the prosecution evidence that the respondent was arrested and his medical examination was conducted and as per MLC Ext.PA he was found capable to perform sexual intercourse. Pubic hair of the respondent were preserved alongwith his underwear by the Medical Officer and were handed over to the police for chemical examination and as per report of Dr. Gian Thakur (PW-7) the then Scientific Officer, FSL, Junga Ext.PW-7/A, human semen was detected on the salwar, underwear and vaginal smear slides of the prosecutrix and the underwear of the respondent, whereas human blood was found on the vaginal swab of the prosecutrix. The certificate regarding date of birth of the prosecutrix Ext.PW-12/A was obtained from Vijay Thakur (PW-12) the then Incharge of the School Manal Mahal, Tehsil Shillai and copy of the Pariwar Register Ext.PW-13/A pertaining to the date of birth of the prosecutrix was also obtained from Partap Singh (PW-13), the then Panchayat Assistant in Gram Panchayat, Lojja Manal, ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...6...
according to which the date of birth of the prosecutrix was .
found to be 7.11.1990. The statements of the witnesses were recorded by ASI Biru Ahmed (PW-15) and ASI Parveen Rana (PW-16) as per their version.
7. On conclusion of the investigation on the basis of the material collected during the investigation, the Officer Incharge of the Police Station, Shillai submitted a charge-sheet against the accused for committing offences punishable under Sections 363, 366 and 376 IPC in the court of learned Judicial Magistrate 1st Class, Court No.2, Paonta Sahib, District Sirmaur, who vide order dated 2.8.2008 committed the case to the Court of learned Sessions Judge, Sirmaur District at Nahan.
8. On consideration, a charge under Sections 363, 366 and 376 IPC was framed against the respondent to which he pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses in support of its case.
9. The statement of the respondent under Section 313 Cr.P.C. was recorded in which he denied the prosecution case and claimed that he is innocent and has been falsely implicated in this case as the prosecutrix of her own accompanied him to Haryana and he being from different caste a false case has been ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...7...
registered against him. No evidence in defence was adduced by .
the respondent.
10. The learned trial Court on the basis of the evidence so led, acquitted the respondent of the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code vide judgment dated 4.5.2009 constraining the State to file the instant appeal.
11. Mr. J. S. Guleria, learned Assistant Advocate General for the appellant-State has vehemently argued that the findings returned by the learned trial court are perverse, inasmuch he has erred in discarding the statements of PW-1 and PW-2 without appreciating the same and in case the learned Court below could have considered the same in their right perspective, then there was no chance of the respondent being acquitted.
12. On the other hand, learned counsel for the respondent have supported the judgment of acquittal on the ground that the same has been passed after taking into consideration the entire facts as also appreciating the law on the subject.
We have heard the learned counsel for the parties and have gone through the record of the case carefully.
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13. It is now well settled principle of law that conviction .
can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. It is also equally settled that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. (Refer State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384, State of Himachal Pradesh Vs. Asha Ram AIR 2006 SC 381, Rajinder Vs. State of Himachal Pradesh, (2009) 16 SCC 69.) However, it has to be borne in mind that a case of sexual assault has to be proved beyond reasonable doubt as any other case and there is no presumption that the prosecutrix would always tell the entire story truthfully.
14. In Rajoo Vs. State of Madhya Pradesh (2008) 15 SCC 133, the Hon'ble Supreme Court held that the testimony of a victim of rape has to be treated as if she is an injured witness but cannot be presumed to be a gospel truth. It was held that:-
"9. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...9...
cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. It .
cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration. Reference has been made in Gurmit Singh's case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...10...
implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be .
examined."
15. In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it was held as under:-
"7. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable. ....."
16. In Dinesh Jaiswal Vs. State of MP, (2010) 3 SCC 323, the Hon'ble Supreme Court held as under:-
"10. Mr. C.D. Singh has however placed reliance on Moti Lal's case (supra) to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one."
17. In Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115, the Hon'ble Supreme Court observed that:-
"5. We are however, of the opinion that the involvement of Abbas Ahmad Choudhary seems to be uncertain. It must first be borne in mind that in hery statement recorded on 17th ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...11...
September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Choudhary. Likewise, she had stated that he was .
not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haq and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhary too had been apprehended and taken to the police station by P.W. 5 -Ranjit Dutta the Constable. The Constable, however, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Choudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
18. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012( 8 SCC 21, the Hon'ble Supreme Court commented about the ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...12...
quality of the sole testimony of the prosecutrix, which would be made .
basis to convict the accused and it was held:-
"15. In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have correlation with each and everyone of other supporting such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...13...
precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant .
materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
19. In State of Madhya Pradesh vs. Munna alias Shambhoo Nath (2016) 1 SCC 696, the Hon'ble Supreme Court held that consensual sex by a girl, who is more than 16 years of age, cannot be termed to be rape.
20. Now, reverting back to the facts, it would be noticed that it is neither the case of the prosecution that the prosecutrix was below 16 years of age at the relevant date and time nor is there any evidence led by the prosecution to this effect.
21. On the other hand, while appearing as PW-4 prosecutrix has stated her age to be 18 years and claimed to be 17 years on the date of the alleged incident. To similar effect is the statement of the father of the prosecutrix Bansi Ram, who appeared as PW-1 and stated that the prosecutrix was aged about 19 years in the year 2008 when the incident took place.
Not only this, the prosecution has examined Vijay Thakur, PW-12, Incharge of School Manal Mahal, Tehsil Shillai to prove ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...14...
the date of birth certificate of the prosecutrix Ext.PW-12/A and .
Partap Singh, PW-13, Panchayat Sahayak in Gram Panchayat, Lojja Manal to prove the copy of family register Ext.PW-13/A in which the date of birth of the prosecutrix has been recorded. A perusal of both these documents would reveal that the date of birth of the prosecutrix is 7.11.1990 which means that at the time of alleged incident i.e. February, 2008, the prosecutrix was 17 years of age. Thus, it stands fully established on record that the age of the prosecutrix at the time of alleged incident was 17 years.
22. Why this Court has been compelled to discuss at the threshold the age of the prosecutrix is the fact that the learned trial Court has come to a categoric conclusion that the intercourse between the prosecutrix and the respondent was consensual and it is in this background that we are mandated to determine the age. For it is more than settled that in case the age of the prosecutrix would have been below 16 years, then her consent to such sexual act, would be immaterial.
23. Having determined the age, we now proceed with the version of the prosecution as contained in FIR Ext.PW-14/A which was recorded on the basis of the statement Ext.PW-1/A of ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...15...
Bansi Ram, PW-1, father of the prosecutrix. It is alleged that on .
11.2.2008 he (Bansi Ram) alongwith his wife had gone to village Jarwa to the house of his relation and on 13.2.2008 when he returned back then he was told by his daughter-in-law Vinta Devi that on 12.2.2008 in the evening the prosecutrix had gone to her 'Ghasni' to cut the grass and thereafter had not returned to the house. Bansi Ram alongwith his family members carried out the frantic search of the prosecutrix in the village as also in the houses of their relatives but the prosecutrix was not to be found. Thereafter, report regarding missing of the prosecutrix was lodged in Police Station. However, on 16.2.2008 Guman Singh, PW-3, told Bansi Ram that on 12.2.2008 in the evening he had seen the prosecutrix accompanying the respondent through a path in the forest, thereby expressing suspicion that the prosecutrix may have been enticed away or allured by the respondent. He thereafter reported the matter to the police. It is then that the police searched for the respondent initially at village Gholadhar and since he was not available, they proceeded towards Haryana from where the prosecutrix was recovered and brought back to Shillai and handed over to her father vide memo ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...16...
Ext.PW-1/B. He further stated that it was the respondent, who .
might have kidnapped the prosecutrix.
24. From the statement of PW-1 as discussed above, it would be evidently clear that in the presence of PW-1 the prosecutrix was not taken away by the respondent nor had he seen the prosecutrix go away with the respondent. It was only on the basis of the information given by Guman Singh (PW-3) that the respondent may have kidnapped the prosecutrix.
25. In the cross-examination, this witness (PW-1) has clearly stated that he had lodged the report with the police only on the information given to him by Guman Singh (PW-3). He further stated that he did not remember what was told to him by the prosecutrix when she was handed over to him and he also did not get recorded the version of the prosecutrix which was told to him by her in the Police Station. This clearly means that there is nothing in the statement of this witness to even remotely infer that on inquiry the prosecutrix had told him that she had been kidnapped by the respondent at the relevant date and time or that the respondent had committed rape upon her. Therefore, the mere fact that this witness was told by Guman Singh (PW-3) that the prosecutrix was seen going with the respondent through ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...17...
the forest towards Ronhat does not in any manner established .
that it is the respondent, who had kidnapped or abducted the prosecutrix and thereafter committed rape upon her.
26. At this stage, we may note that it is not disputed even by the respondent that the prosecutrix was recovered by the police at Indri where he was present alongwith the prosecutrix. It is also not disputed by the respondent that the prosecutrix has gone with him from the fields to the area of Haryana where he was employed in the Factory and the prosecutrix stayed with him there for two days and during this period he had committed sexual intercourse with her as is clearly evident from the statement of respondent recorded under Section 313 Cr.P.C. In reply to question No.2, the respondent has admitted that the prosecutrix met him in the Ghasni on 12.2.2008 at about 4.00 p.m. whereas in reply to question No.5, he has stated that the prosecutrix accompanied him at her own and on the way Guman Singh (PW-3) also met them. It is also admitted by him that the prosecutrix was taken to Vikas Nagar by him and from there to a village falling in the State of Haryana where he had taken a residential quarter on rent. However, the categoric version put-forth by the respondent is that the prosecutrix had of her ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...18...
own volition and free will accompanied him to Haryana and .
lateron he had been falsely implicated as they belong from different caste.
27. Bearing in mind the aforesaid background, we now proceed to consider the testimony of Guman Singh, who appeared as PW-3 and stated that at about 6.00 p.m. at the relevant date when he was returning to his house he had seen the prosecutrix and the respondent going through the forest towards Nainidhar and had in fact given information to PW-1 Bansi Ram accordingly.
28. Noticeably, this fact is not even disputed by the prosecutrix while appearing as PW-4 when she states that she had gone with the respondent from Ghasni through the forest towards Meenus and from there accompanied the respondent to Vikas Nagar and then to a village falling in Haryana where she stayed with the respondent in a residential quarter on 13.2.2008 and 14.2.2008 and on the next day when they were present at Indri then the police came there alongwith her father from where both of them were brought to Police Station, Shillai.
29. Jeet Singh, PW-6 has proved on record the recovery memo Ext.PW-1/B whereby the prosecutrix was taken into ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...19...
custody at Indri in Haryana. This testimony is duly corroborated .
by PW-16 ASI Parveen Rana and this fact is not otherwise in dispute in the instant case.
30. The only question that requires consideration is whether the prosecution has been able to prove its case with regard to the offence alleged to have been committed by the respondent i.e. kidnapping and rape. We may once again reiterate that it is not at all disputed that the prosecutrix was in fact subjected to sexual intercourse. However, the question remains whether it was consensual or was forcible so as to constitute rape.
31. The prosecutrix while appearing as PW-4 has stated that she was subjected to sexual intercourse by the respondent on 14.2.2008 and has further asserted that such sexual intercourse was committed forcibly by the respondent without her consent and despite her resistance as the respondent had caught hold of her both arms. She also stated that she had raised hue and cry, but none came to her rescue. However, the statement of the prosecutrix cannot be taken at its face value and has to be taken pinch of salt because it has come on record that the prosecutrix out of her free will and volition had ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...20...
accompanied the respondent to various places and had even .
stayed with him. In case the prosecutrix had been kidnapped or subjected to rape, then why she had not raised any hue and cry.
32. No doubt, the prosecution did try to establish before the learned trial Court that the prosecutrix had been taken away by the respondent after alluring or enticing her as had been reported vide Ext.PW-1/A by Bansi Ram (PW-1). However, such version was not supported by Bansi Ram when he appearing as PW-1. He nowhere in his statement has deposed that the prosecutrix was taken away by the respondent at the relevant date and time from his lawful guardianship by giving any allurement to her.
33. Now adverting to the testimony of PW-4. She in her statement has stated that on 12.2.2008 at about 4.00 p.m. she had gone to the fields to bring grass and when she was cutting the grass the respondent came there and told her that he would get her employed in a factory and would also arrange for a good boy for her marriage and the respondent asked her to accompany him. But then the prosecutrix has stated that she told the respondent that she had to inform her parents, but the respondent took her away forcibly. Thus, the statement of the ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...21...
prosecutrix unequivocally suggests that even though the .
respondent had asked her to accompany her by alluring her that he would get her employed in the factory and would arrange a suitable match for her, but the prosecutrix did not accompany the respondent in pursuance of such allurement. On the other hand, it is her statement that when the respondent gave such allurement, she informed the respondent that she had to inform her parents, but the respondent had thereafter taken her forcibly. Adverting to the cross-examination, it would be noticed that the prosecutrix stated that the respondent forcibly picked her up and took her away through the forest and thereafter she went with the respondent which further establishes that the prosecutrix had not accompanied the respondent in pursuance to the allurement as aforesaid.
34. Thus, on the basis of the statement of the prosecutrix, it is nowhere established that the respondent had taken away the prosecutrix from her field by giving any allurement or enticing her in any manner. Noticeably, there is no evidence on record which may establish that the respondent had allured the prosecutrix.
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35. Now, in case the prosecutrix had been forcibly taken .
by the respondent as is alleged by the prosecutrix, then it is also her admitted case that they met PW-3 Guman Singh on the way, then why the prosecutrix did not raise any hue and cry on seeing Guman Singh (PW-3) or narrated the incident to him because PW-3 Guman Singh is none other than the nephew of the prosecutrix. That apart, it has come in the statement of the prosecutrix that during the night at village Meenus she alongwith the respondent stayed in rainshelter. However, when cross-examined, the prosecutrix had admitted that there are many houses and shops in Meenus and she did not seek the help of any inhabitant of the locality while staying there.
36. The prosecutrix further stated that from Meenus they went to Vikas Nagar and then to a village in Haryana in a bus.
While being cross-examined, she did not narrate the incident to any of the passengers or to the driver or conductor of the bus.
The prosecutrix has further stated that she stayed with the respondent in his quarter at Haryana and the respondent left the quarter in the morning saying that he would arrange a job for her in the factory and also look for a good boy for her marriage and the respondent thereafter returned only in the evening.
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37. Adverting further to the statement of the prosecutrix, .
it would be noticed that she has stated that during the night of 13.2.2008 she stayed in the quarter of the respondent and on the night of 14.2.2008 the respondent committed rape upon her despite her raising cries and protest. Admittedly, the prosecutrix was recovered from the bus stand at Indri alongwith the respondent on 17.2.2008. Thus, the evidence on record clearly indicates that the prosecutrix even though had got ample opportunities at different places either while moving on the road or in the bus or while staying in the residential quarter of the respondent to complain against the respondent and to protest against his activities, but nowhere she had made any complaint or protest. She of her own volition and out of free will accompanied the respondent without any hitch, which only indicates that the prosecutrix was acting freely as per her discretion and there was no compulsion or force on her to move one place to another.
38. At this stage, it would be necessary for us to make note of medical examination of the prosecutrix that was conducted on 17.2.2008, which clearly establishes that no marks of violence and no injury on any part of the body of the ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...24...
prosecutrix including her genital area were found, which .
otherwise belies the version of the prosecutrix regarding her being subjected to forcible sexual intercourse when she stayed with the respondent from 13.2.2008 to 17.2.2008.
39. We find the version putforth by the prosecutrix to be highly improbable and difficult to accept on its face value. Having found it difficult to believe such testimony on its face value, though we searched for support from other material also, but found complete lack of corroboration of material particulars and, therefore, the testimony of the prosecutrix being not worthy of any credence is totally unreliable. In case the prosecutrix had been subjected to rape multiple times, we really see no reason why she should not have raised an alarm (as has been observed above).
In view of the aforesaid discussion, the respondent cannot be held guilty of an offence punishable under Section 376 IPC.
40. Undoubtedly, the prosecutrix being only 17 years of age at the relevant time was minor so far as the other offence of kidnapping is concerned, but as observed above, the prosecution has miserably failed to prove on record that the prosecutrix had been enticed by the respondent to accompany him at different ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...25...
places. We have already concluded that the prosecutrix was a .
consenting party.
41. On the basis of the aforesaid discussion, it can conveniently be held that the charges levelled against the respondent have not at all been proved.
42. We are here dealing with an appeal against acquittal and legal position with regard to interference in such matters is well settled in Mookkiah and another vs. State, represented by Inspector of Police, Tamilnadu, 2013 (2) SCC 89, wherein the Hon'ble Supreme observed as under:-
"9. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal
10. This Court in a series of decisions has repeatedly laid down that "3...... as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re- appreciate the entire evidence, though while choosing to interfere only the court should find an ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...26...
absolute assurance of the guilt on the basis of the evidence on record and not merely because the High .
Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, 2004 5 SCC 573]
11. In State of Madhya Pradesh vs. Ramesh and Another, 2011 4 SCC 786, this Court, while considering the scope and interference in appeal against acquittal held:
"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."::: Downloaded on - 05/01/2018 23:02:56 :::HCHP
...27...
12. In Minal Das and Others vs. State of Tripura, 2011 9 SCC 479, while reiterating the very same position, one of us, P. .
Sathasivam, J. held:
"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there r 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."
13. In Rohtash vs. State of Haryana, 2012 6 SCC 589, this Court held:
"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...28...
other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v.
.
Talevar, 2011 11 SCC 666 and Govindaraju v. State, 2012 4 SCC 722)"
14. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 10 SCC 383, one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, 1934 AIR(PC) 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, 2007 4 SCC 415 as under:
"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup1 is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding 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 Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.::: Downloaded on - 05/01/2018 23:02:56 :::HCHP
...29...
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient 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 double presumption in favour of the accused. Firstly, the presumption of innocence is r available to him under the fundamental principle of criminal jurisprudence that every person shall 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.
[pic](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."
(emphasis in original)
43. Thus, what can be taken to be settled is that the appellate court should not ordinarily set-aside a judgment of acquittal and should concentrate to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...30...
appellate court is entitled to consider whether in arriving at a .
finding of fact, the trial court has failed to take into consideration admissible evidence and/or has taken into consideration the evidence brought on record contrary to law.
Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court.
44. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. However, the appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner, where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP ...31...
irrationality. This however is not the fact situation obtaining in .
this case.
45. In view of the aforesaid discussion, we are of the considered view that the prosecution has miserably failed to prove its case. After going through the record of case, we find no reason to take a different view than the one taken by the learned trial court and even otherwise, in absence of any material to the contrary, the prosecution has failed to persuade us to take a different view. The findings recorded by the learned trial Court are based on correct appreciation of the facts and the law and do not warrant any interference. There are no compelling circumstances which may call for interference as the reasons given by the learned Court below are cogent and convincing; and based on records of the case.
46. For the forging reasons, the appeal lacks merit and is accordingly dismissed. Pending application(s), if any, also stands dismissed. Bail bonds are discharged.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 04.01.2018 (GR) ::: Downloaded on - 05/01/2018 23:02:56 :::HCHP