Himachal Pradesh High Court
State Of H.P vs Vineet Kumar And Ors on 27 July, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.93/2011 Decided on : 27.7.2017 __________________________________________________________ .
State of H.P. .....Appellant
Versus
Vineet Kumar and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes For the appellant: Mr. V. S. Chauhan, Addl. A.G. with r Mr. Puneet Rajta, Dy. A.G. and Mr. J.S. Guleria, Asstt. A.G. .
For the respondents: Mr. Sunny Modgil, Advocate, vice Mr. Devender K. Sharma, Advocate, for respondents No. 1 to 3.
Mr. Lalit K. Sharma, Advocate, vice Mr. D.C. Guleria, Advocate, for respondent No.4.
_______________________________________________________________ Tarlok Singh Chauhan (oral):
By medium of this appeal, the State has assailed the judgment dated 18.10.2010 passed by the learned Presiding Officer, Fast Track Court, Mandi, H.P. in Sessions Trial No.51/2007/2006, whereby the respondents have been 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...2...
acquitted of the offences punishable under Sections 366, 376, .
392, 323 read with Section 34 of the Indian Penal Code.
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 27.7.2006, complainant Labh Singh along with the prosecutrix aged about 32 years had gone from Mandi to Baggi in his Maruti car bearing No. HP-33-A-4611 to meet one Sunil Kumar in connection with some work. They had reached at the quarter of Sunil Kumar at about 7.30 P.M, but the quarter was found locked. Thereafter, while waiting for Sunil Kumar, they had proceeded towards Dhanotu in the car. After covering some distance, they had stopped their car near a ground. At about 8.00 P.M., while they were talking inside the car, a Balero vehicle had come there, which was proceeding from Baggi side towards Sundernagar.
The said Bolero vehicle was stopped near Maruti car.
4. According to the prosecution, accused Lekh Raj, Vineet Kumar and Pawan Kumar were travelling in the said Bolero vehicle. Accused Lekh Raj was driving that vehicle.
Accused Vineet Kumar and Pawan Kumar had alighted from that ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...3...
Bolero vehicle and started giving beating to the complainant.
.
They had dragged the complainant out of the Maruti car and pushed him inside the Bolero vehicle. Accused Lekh Raj had taken the complainant from there in the said Bolero vehicle. The complainant was left by Lekh Raj at about 12 mid night near Baggi. Accused Vineet Kumar and Pawan Kumar had forcibly taken the prosecutrix in the Maruti car of the complainant at some unknown place, where they had committed rape on the prosecutrix inside the car and outside the car. Thereafter, accused Vineet Kumar and Pawan Kumar had taken the prosecutrix in that very Maruti car towards Sundernagar, where they had called accused Himesh Kumar and got him inside the Maruti car, then all three accused had taken the prosecutrix in that very cay at some unknown place. All the three accused had committed rape on the prosecutrix at that place. After that, accused Himesh Kumar had left that place, while accused Vineet Kumar and Pawan Kumar had taken the prosecutrix to a Hotel known as Rising Star where they stayed with the prosecutrix in room No.102 of the Hotel and had also committed rape on her during night. They had left the hotel in the morning and proceeded towards Hatgarh in Maruti car.
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5. The further case of the prosecution is that accused .
Vineet Kumar and Pawan Kumar had left the prosecutrix and the Maruti car on the way and fled away from there. On 28.7.2006, at about 9.00 A.M., complainant Labh Singh had given telephonic information about the incident to Police Station, Balh, on the basis of which rapat No. 34, dated 28.7.2006 was recorded. Inspector Hemant Kumar, the then SHO, Police Station, Balh along with other police officials, left the Police Station to proceed towards Baggi. The police party met complainant Labh Singh at Baggi and thereafter, the police party searched for the prosecutrix and the vehicle. Inspector Hemant Kumar recorded statement of the complainant Labh Singh under Section 154 Cr.P.C., on the basis of which, FIR No. 200/2006 was recorded at Police Station, Balh. Maruti Car of the complainant and the prosecutrix were found by the police at B.S.L. Silt Guard, near Baggi. Police recorded the statement of the prosecutrix. She was taken to hospital for medical examination, but she refused to get herself medically examined on that day. However, on 8.8.2006, the prosecutrix moved an application to SHO, Police Station, Balh, alleging therein that she wanted to get herself medically examined and thereafter the ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...5...
Medical Officer on duty conducted the medical examination of .
the prosecutrix. During the course of the investigation, the accused persons were arrested. Maruti car along with its seat cover was taken into possession by the police. Police visited Room No.102 of Hotel Rising Star from where one bed sheet and one quilt cover were taken into possession by the police. The clothes of accused persons which they were putting on, on the date of incident, were separately taken into possession by the police. Statements of witnesses were also recorded. Accused persons were also got medically examined. It was found during the course of the investigation that the accused Pawan Kumar, Vineet Kumar and Himesh Kumar committed gang rape on the prosecutrix. It was also found during the investigation that accused Lekh Raj along with other co-accused voluntarily caused simple hurt to complainant Labh Singh. It was also found during the investigation that accused Pawan Kumar and Vineet Kumar in furtherance of common intention committed theft of Maruti car of the complainant and also abducted the prosecutrix with an intention to commit rape on her. After completion of the entire formalities, charge sheet against the accused persons was submitted in the Court.
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6. The learned trial court after recording the evidence of .
the prosecution and thereafter examining the accused persons under section 313 Cr.P.C. acquitted them of the offences punishable under Sections 366, 376, 392, 323 read with Section 34 of the Indian Penal Code vide judgment dated 18.10.2010 constraining the State to file the instant appeal.
7. Learned Additional Advocate General for the appellant-State rhas vehemently argued that the findings returned by the learned trial court are perverse, inasmuch as it has not correctly appreciated the statement of the prosecutrix, who appeared as PW5 and has further not appreciated the statement of the complainant, who appeared as PW6.
8. Learned counsel for the respondents/accused persons have supported the impugned judgment dated 18.10.2010.
9. We have heard the learned counsel for the parties and have also gone through the record of the case carefully.
10. 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...7...
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.
11. 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 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...8...
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 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."
12. In Tameezuddin @ Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566, it was held as under:-
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"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. ....."
13. 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."
14. 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 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...10...
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."
15. In Rai Sandeep @ Deepu Vs. State of NCT of Delhi (2012( 8 SCC 21, the Hon'ble Supreme Court commented about the 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...11...
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 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."::: Downloaded on - 02/08/2017 23:56:48 :::HCHP
...12...
.
16. Now, coming to the statements of the prosecution witnesses. Before adverting to the statements of the PW-5 prosecutrix and the PW-6 Labh Singh, complainant, we shall first deal with the testimonies of other prosecution witnesses.
17. PW-1, Om Parkash is the owner of the Rising Star Hotel and has not supported the prosecution case because in the cross examination conducted by the Public Prosecutor, he has stated that portions A to A, B to B, C to C, D to D and E to E of his statement recorded by the police under Section 161 Cr.P.C.
are not correct. While in his cross-examination conducted by the defence counsel, he deposed that one lady along with a person had come to his hotel for stay and the said lady had disclosed herself to be wife of that person, who was with her. He further stated that he had entered the names of the lady and the person accompanying her in his visiting register and obtained their signatures. However, what is more important in the statement is that this witness clearly deposed that the person who was accompanying the lady on the date was not amongst the accused persons in the Court. However, what is more intriguing is that ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...13...
the prosecution did not even bother to examine the records of .
the Rising Star Hotel, more particularly the visitor's register.
The prosecution is thus guilty of withholding of best evidence constraining this Court to draw an adverse inference.
18. PW-2, Karam Singh, Accountant, who is supposed to be the witness to the recovery memo, Ext.PW2/A has not supported the prosecution story and has stated that four seat covers from maruti car bearing registration No. HP-33A-4611 were not taken into possession in his presence vide memo, Ext.
PW2/A. Nothing material could be elicited from his cross-
examination conducted by the Public Prosecutor after he was declared hostile.
19. PW-3, HC Manohar Lal, simply deposed about scribing of FIR, Ext.PW3/B. He stated that the case property of the case was deposited with him and he made entry in the malkhana register.
20. PW-4, Constable Vidyasagar, deposed regarding the delivery case property with C.F.S.L. Chandigarh vide receipt Ext.PW3/J. ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...14...
21. PW-7, ASI Jaspal Singh is the witness to the recovery .
of the keys of the vehicle bearing registration No.HP-33a-4611 vide Ext.PW5/B.
22. PW-8, ASI Mohan Singh Thakur, is the witness to recovery of shirts and trousers of accused Himesh Kumar and Pawan Kumar vide memos, Ext.PW8/A and Ext.PW8/B respectively.
23. PW-9, Dr. Reena Thakur, is the Medical Officer, who medically examined the prosecutrix on 9.8.2006 vide MLC, Ext.PW9/B and did not find any signs of rape and rightly so since alleged incident alleged to have taken place way back during the intervening night of 27/28.7.2006.
24. PW-10, Dr. Devinder Sharma, medically examined the complainant, PW-6 Labh Singh and found certain simple injuries on his person vide MLC Ext.PW10/B.
25. PW-11, Inspector Hemant Kumar, is the investigating officer in this case. In examination in chief, he stated that at the time when he was posted as SHO, Police Station Balh, on 28.7.2006 at about 9.05 A.M., he received a telephonic information from one Labh Singh, who stated that some persons had snatched his vehicle and had also kidnapped one girl near ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...15...
Baggi. On the basis of this telephonic information, rapat No.34, .
dated 28.7.2006 was recorded in the roznamcha vide Ext.PW3/K. Thereafter, he along with other police officials went to the spot at Baggi where they met Labh Singh and thereafter proceeded to search for the girl in the vehicle, but in vain.
Thereafter, statement of Labh Singh was recorded under Section 154 Cr.P.C. and the same was sent to the Police Station through Constable Megh Singh, on the basis of which FIR, Ext.PW3/B was recorded in the Police Station. Later on, girl and the vehicle were found. The vehicle was taken into possession vide memo, Ext.PW5/B. The prosecutrix took the police party to the place, where the alleged incident took place. The site plan, Ext.PW11/A was prepared. The prosecutrix also disclosed that she was taken by the accused persons to Rising Star Hotel where they had raped her and the site plan, Ext.PW11/B was prepared. The blood stained quilt cover and bed sheet, which were identified by the prosecutrix, were taken into possession vide memo, Ext.
PW1/A and thereafter, the prosecutrix was sent for medical examination. The accused Vineet Kumar, who was found sitting in the rain shelter at Chatrokhari Chowk, was arrested and thereafter accused Lekh Raj was arrested from his house at ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...16...
village Kot. On identification of the Bolero vehicle, the same was .
taken into possession. Statements of the witnesses were recorded under Section 161 Cr.P.C. The prosecutrix was taken to the C.H.C. Hospital, Ratti for medical examination. Since no lady doctor was found available in C.H.C. Hospital, Ratti, the prosecutrix was taken to Zonal Hospital Mandi, where she refused to get herself medically examined. Similarly, the clothes worn by the accused persons were taken into possession. The statement of the prosecutrix was recorded under Section 164 Cr.P.C., Ext.PW5/C. On 8.8.2006, the prosecutrix moved an application, Ext.PW11/D seeking her medical examination. On 9.8.2006, the prosecutrix was got medically examined in Zonal Hospital Mandi.
26. In cross-examination, this witness does not appear to remember anything because he clearly states that he does not remember the time when he along with the prosecutrix reached Rising Star Hotel and the time when he returned from here. He further cannot tell the time of apprehending the accused Vineet and even accused Lekh Raj for that matter. He cannot even tell the time when they reached the Police Station. He categorically admitted that he did not take into possession the visiting register ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...17...
of Hotel Rising Star. He further deposed that Labh Singh did not .
come in the intervening night of 27/28.7.2006 to the Police Station Balh and he stated that it was 9.05 A.M. when telephonic information for the first time about the alleged incident was received at Police Station. Meanwhile, this witness categorically stated that he had persuaded the prosecutrix to get her medically examined, but she refused.
27. It would be noticed that Ext. DX is the MLC of the prosecutrix, which shows that she was taken by the police to the Hospital on 28.7.2007 for medical examination, but she not only refused to get herself medically examined on that date, but even categorically stated that nothing had happened with her.
There is no satisfactory explanation given by the prosecutrix for her refusal of medical examination and it is also not forthcoming as to why she further claimed that nothing had happened with her, however, while appearing as PW5, the prosecutrix stated that she had refused to get herself medically examined because she was mentally upset and moreover the accused persons had threatened to kill her. The explanation offered by the prosecutrix has not been accepted by the learned trial court and rightly so, as the same is clearly an afterthought. This is clearly ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...18...
evident from Ext.PW11/D, which is an application given by the .
prosecutrix to the police for medical examination on 8.8.2006, wherein it has not been mentioned that the accused persons had threatened to kill her on 28.7.2006 constraining her to refuse the medical examination. In her cross-examination, she categorically stated that the police party had met her at about 6.30 A.M. on 28.7.2006, but according to PW-11, Investigating Officer, Police party had met her at about 5.00 P.M. on 28.7.2006. That apart, Labh Singh while appearing as PW6 stated that he and the prosecutrix had gone to Baggi on 28.7.2006 to meet one Sunil Kumar, but the prosecutrix denied having gone to Baggi.
28. Apart from the above, it has come on record that the prosecutrix was aged about 32 years at the time of alleged incident and as per her story, she was taken in the car to various places including a hotel known as Rising Star and even the Sundernagar Bazaar, but there is no explanation forthcoming as to why she did not raise hue and cry in case, she was detained against her wish.
29. The fact that the prosecutrix had refused her medical examination after levelling very serious allegation of rape against ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...19...
the accused and not giving any acceptable explanation for the .
same only indicates the possibility of false implication of the accused. No justification or logical reason is forthcoming from the prosecution regarding the refusal of the prosecutrix for medical examination. The refusal of the prosecutrix to get medical examination conducted and give samples indicates the possibility of false prosecution of the accused and there is a doubt on the veracity of the allegation against the accused. Such refusal would also suggest that there were no marks of external or internal injuries found on her body, otherwise, she should have undergone the medical examination, as observed earlier.
30. 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 collaboration 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 have not raised an alarm in Sundernagar bazaar or at the ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...20...
Rising Star Hotel or other places where she was alleged to have .
been raped.
31. Now, adverting to the statement of PW-6 Labh Singh.
He categorically deposed that he had visited the quarter of his maternal uncle, however, this fact was not stated before the police when his statement under Section 161 Cr.P.C. was recorded. Therefore, further story that he along with his maternal uncle hired a vehicle and went to the Police Station, obviously is not to be found in the said statement.
32. As regards other contradictions, it would be noticed that the Investigating Officer, PW-11 has stated that the information about the alleged incident was given by the complainant, Labh Singh to the police telephonically on 28.7.2006 at about 9.05 A.M., but Labh Singh, while appearing in the Court as PW-6 has stated that he along with his maternal uncle had gone to the Police Station during the intervening night of 27/28.7.2006 and given information about the incident to the police.
33. On the basis of the aforesaid discussion, it can conveniently be held that the charges levelled against the accused persons have not been proved at all proved. The ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...21...
learned trial court has rightly come to the conclusion that the .
version putforth by the prosecution is highly improbable and full of contradictions, which belies logic and therefore, no reliance of credence can be attached to the same.
34. These are the aspects of the matter having been discussed in paras 29 to 32 of the impugned judgment, which are reproduced below:-
"29. The prosecutrix has stated in her cross-examination that accused Vineet Kumar and Pawan Kumar had taken her in the car to Sundernagar bazaar. She has also stated that some of the shops were open in the market at that time. She has also stated that the accused persons had bought some medicine at Sundernagar Bazaar. If the accused persons had taken the prosecutrix at Sundernagar bazaar and stopped the car there to buy medicine, then the prosecutrix had sufficient opportunity not only to run away from there but she could have raised an alarm there, it would have been heard by many persons, who would have immediately come to her rescue. There is no satisfactory explanation on the part of the prosecutrix as to why she did not raise any alarm when the accused persons had taken her in the car at Sundernagar bazaar. Thus, the conduct of the prosecutrix is surprising.
30. Accused Vineet Kumar and Pawan Kumar are alleged to have stayed with the prosecutrix in Room No.102 of Hotel Rising Star during the intervening night of 27/28.7.2006. Prosecution has examined owner of Hotel Rising Star as PW1. he has not supported the prosecution case. He has stated in the cross- examination conducted by the learned defence counsel that one lady along with a person had stayed in the hotel on that night ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...22...
and that person was not amongst from the accused. Thus, the possibility cannot be ruled out that some person other than the .
accused had stayed in the Hotel Rising Star on the alleged date of incident.
31. PW1 has stated in his statement that a lady along with a person had stayed in the Hotel and the lady had disclosed herself to be wife of that person. He has stated that he had written the names and addresses of that lady and the person in the visiting register and obtained their signatures in the register.
Admittedly, the visiting register of the Rising Star Hotel has not been taken in possession by the police. No explanation has been given by the Investigating Officer as to why he did not take in possession the visiting register of the Hotel. Hence, it would not be unreasonable to draw an inference that had the register been taken in possession, it would not have supported the prosecution case. This fact also creates doubt in the genuineness of the prosecution case.
32. It has come in the cross-examination of the prosecutrix that 2-3 boys were present on the reception of the hotel when the accused had allegedly taken her there. If 2-3 boys were present on the reception of the hotel at that time, then the prosecutrix had sufficient opportunity not only to run away from there but to take help of those boys. There is no explanation on the part of the prosecutrix as to why she did not narrate the incident to the persons found present in the Hotel. Thus, the conduct of the prosecutrix is surprising as to why she did not take the help of the persons staying in the Rising Star Hotel."
35. The legal position with regard to the inference in appeal against acquittal is well settled in Mookkiah and another vs. State, represented by Inspector of Police, ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...23...
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 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] ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...24...
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 r 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."
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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...25...
adequate reasons set aside the judgment of acquittal. 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."
13. In Rohtash vs. State of Haryana, 2012 6 SCC 589, this Court held:
"27. The High Court interfered with the order of acquittal r 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 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...26...
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:
r (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.
(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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...27...
the accused. Firstly, the presumption of innocence is 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)
36. 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 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.
37. In exceptional cases, where there are compelling circumstances and the judgment under appeal is found to be ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...28...
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 irrationality. Having examined scope of interference, we now proceed to determine the case on its merits.
38. 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 ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP ...29...
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 an interference as the reasons given by the learned court below are cogent and convincing; and based on records of the case.
39. For the forging reasons, the appeal lacks merit and is accordingly dismissed. Pending application(s), if also stands dismissed. Bail bonds are discharged.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 27th July, 2017 (pankaj) ::: Downloaded on - 02/08/2017 23:56:48 :::HCHP