Punjab-Haryana High Court
Jaiwati And Another vs Naresh @ Dalbir And Another on 17 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM A -818-MA of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A -818 -MA of 2012
Date of decision: 17.01.2013
Jaiwati and another
......Applicants
Versus
Naresh @ Dalbir and another
...Respondents
Coram: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Inderjit Singh
Present: Mr.Rahul Vats, Advocate for the applicants
Jasbir Singh, J.
Vide judgment dated 24.8.2012, respondent No.1/ accused was convicted and sentenced for commission of offences under Sections 341, 323, 354 IPC. However, he was acquitted of a charge framed against him under Section 376 IPC.
To assail acquittal of the respondent-accused to that extent, this application has been filed by the complainant and the prosecutrix under Section 378(4) Cr.P.C., seeking leave to file an appeal against the judgment referred to above.
Process of law was initiated on a statement made by Jaiwati (PW4)/ applicant, whereupon FIR No.346 was registered against the respondent - accused on 2.9.2009 in police station Sadar Palwal for CRM A -818-MA of 2012 2 commission of offences under Sections 323, 341, 354, 376 IPC. It was an allegation against the respondent-accused that he on 1.9.2009 had committed rape upon daughter of the applicant, outraged her modesty and also caused injuries to her.
On the basis of a statement made by the applicant Jaiwati (PW4), a DDR was recorded. On 3.9.2009, statement of the prosecutrix was recorded under Section 161 Cr.P.C., wherein she has stated that rape was committed upon her by the respondent-accused. Thereafter, in the FIR (Ex.PA/1), which was recorded on 2.9.2009 an offence under Section 376 IPC was also added. The investigating officer got the prosecutrix medico legally examined through Dr.Manisha Chaudhary (PW10). Respondent- accused was arrested on 4.9.2009. He was also subjected to medical examination through Dr.Ajay Kumar (PW15). Statement (Ex.PW5/A) of the prosecutrix was also got recorded under Section 164 Cr.P.C., wherein she reiterated her allegation of committing rape by the respondent-accused upon her.
The investigating officer went to the place of occurrence, got prepared a site plan of the spot. To prove age of the prosecutrix, statement of Sunder Singh (PW17) was recorded, who proved admission and withdrawal register of A.J.S.D. Public School, Phulwari, wherein date of birth of the prosecutrix was mentioned as 25.12.1993. The investigating officer after recording statement of the witnesses and completing other formalities, submitted the final report in Court. Copies of the documents were supplied to the respondent-accused as per norms. Case was committed to the competent Court for trial, where charges were framed against the CRM A -818-MA of 2012 3 accused on 20.1.2010. The respondent -accused pleaded not guilty and claimed trial. Prosecution produced 17 witnesses and also brought on record documentary evidence to prove its case. Mr.Subhash Tyagi, Principal, Adarsh Senior Secondary School, Dhauj, district Faridabad was also examined as a Court witness. On conclusion of prosecution evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C. Incriminating material on record was put to him which he denied, claimed innocence and false implication. He also led evidence in defence.
After perusing evidence led by both the parties, the trial Judge vide judgment dated 24.8.2012 acquitted the respondent-accused from a charge framed under Section 376 IPC, whereas for the other offences he was convicted and sentenced accordingly on 25.8.2012.
Counsel for the applicant has contended that commission of forcible rape by the respondent-accused upon the prosecutrix is proved on record. He has taken us through the paper book upon reading the same we are not inclined to accept the argument raised by counsel for the applicant. It is on record that statement of Jaiwati (PW4) - mother of the prosecutrix was recorded on 1.9.2009, wherein there was no mention of commission of rape upon the prosecutrix by the respondent-accused. Those allegations surfaced only on 3.9.2009 when statement was recorded under Section 161 Cr.P.C. It was an allegation of the prosecutrix that the above offence was committed on a hard surface in the fields and at that time, injuries were also caused to her. The prosecutrix was got medico legally examined through Dr.Manisha Chaudhary (PW10). In her statement, this witness has specifically deposed that no injury was found on the person of the CRM A -818-MA of 2012 4 prosecutrix. It was also opined that she was habitual to sexual intercourse and further that during last three days, no sexual activity has been noticed so far as the prosecutrix was concerned. It was also alleged by the prosecutrix that at the time of commission of above offence, she had also caused injuries to the respondent-accused, however, as per statement made by Dr.Ajay Kumar (PW15), no such injury was found on the person of the respondent-accused. In that regard, the trial Judge has noticed as under:-
"48. I am also of the considered opinion that mere non finding of injury on the person of prosecutrix or the accused is not a single aspect on which benefit of doubt can be given to the accused. However, each case is to be judged on the basis of entire attending circumstances. In this case when the prosecutrix has appeared in the witness box she has stated in so many words that the accused dragged her to a distance of about 15 feet inside Jawar crop. She had tried to save her but accused had over-powered her. She had given scratches to the accused and the occurrence lasted about half an hour. Accused put off her clothes as well as his own clothes. She has also stated that accused has committed rape upon her 3-4 times in half an hour.
49. In the light of aforesaid deposition of the prosecutrix it becomes highly improbable that the prosecutrix was raped 3-4 times by the accused and her clothes were put off by the accused and accused also put off his clothes. Accused had used maximum force in this case and also received injuries at CRM A -818-MA of 2012 5 the hands of prosecutrix, despite that no injury on the person of the accused was found. Likewise, no corresponding injury, which could have been caused at the time of commission of rape forcibly could be detected on the person of prosecutrix and this fact is quite clear by deposition of PW10 Dr.Manisha Chaudhary who has deposed in her cross-examination that corresponding injuries on the persons of prosecutrix was not found which could have been caused in rape. Likewise, statement of PW15 Dr.Ajay Kumar also clearly shows that no injury was found on the person of accused at the time of his medico-legal examination. Therefore, case of prosecution becomes doubtful."
The trial Judge has also observed that in the first statement, when a complaint was made to the police on 1.9.2009, no allegation of rape was made against the respondent-accused. The trial Judge has also noted material improvements in the statements made by the prosecutrix and her mother Jaiwati (PW4). When giving benefit of doubt to the respondent- accused, it was observed as under:-
"52. In the light of aforesaid observation, I am of the considered opinion that the testimony of prosecutrix PW5 is to be considered with a pinch of salt. There is no explanation on part of PW5 prosecutrix as to why commission of rape by the accused was not reported to the police when D.D.R. Ex.PA was lodged and she was accompanied by her mother. In this case prosecution has not come forward with a version that due to CRM A -818-MA of 2012 6 shame or due to some other reasons the matter was not reported to the police for a considerable period of 3 days. Even if hypothetically it is to be presumed that the prosecutrix was ashamed and did not report the matter to her mother, it is not a plausible explanation. It has been admitted by PW4 Jaiwati and PW5 prosecutrix that at the time of commission of rape when she was crying for help, her uncle Kumar Pal attracted to the spot and accused fled away. Naturally if Kumar Pal reached at the place of occurrence, the prosecutrix would have been in an inebriated condition which could have speaks in volumes. Strange enough prosecution has not examined Kumar Pal in this case who was most natural witness available at the place of occurrence. Likewise, PW4 Jaiwati and PW5 prosecutrix has deposed that at the time of occurrence 2/3 ladies were also present at the place of occurrence, but strange enough these ladies were not investigated by the police nor they were called as a witness when the trial was being conducted. Why Kumar Pal was left by the prosecution is a mystery in this case. Therefore, also the story of prosecutrix could not be considered to be free from blemishes.
53. I am also of the considered opinion that the testimony of PW4 Jaiwati and PW5 prosecutrix given in court is a material improvement made by them and chances of concoction and aggravating the offence is there. If it is so, the view which is CRM A -818-MA of 2012 7 favourable to the accused is to be taken into account."
The trial Judge after thrashing the entire evidence, rightly came to a conclusion that offences other than an offence under Section 376 IPC have been made out against the respondent-accused. After making detailed discussion, the respondent-accused was held guilty for commission of offences under Sections 341, 323, 354 IPC vide the judgment under challenge.
Counsel for the applicant has failed to indicate any misreading of evidence on the part of the trial Court, which may necessitate interference in this application.
This Court feels that the finding given is as per evidence on record. The trial Judge has examined evidence of prosecution in a threadbare manner. Opinion expressed is as per law.
The law of interfering in judgment of acquittal is well settled. It is only in those cases where there are compelling circumstances and judgment under assail is perverse, the appellate Court can interfere with the order of acquittal. The appellate Court is supposed to bear in mind the presumptions of innocence of the accused and further that the trial Court's acquittal order further strengthen that presumption. Interference in a routine manner, where other view may be possible, should be avoided unless there are good reasons to do the same.
Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
CRM A -818-MA of 2012 8
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
Similarly, in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415, it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479, decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment 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 CRM A -818-MA of 2012 9 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 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 between an CRM A -818-MA of 2012 10 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."
Counsel for the applicant has failed to indicate any misreading of oral as well as documentary evidence on record by the trial Court. No case is made out for interference.
Dismissed.
(Jasbir Singh)
Judge
17.01.2013 (Inderjit Singh )
gk Judge