Himachal Pradesh High Court
State Of Himachal Pradesh vs Rajan Kumar on 3 October, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Criminal Appeal No.4074/2013
Date of decision : 03.10.2016
State of Himachal Pradesh ... Appellant.
Versus
Rajan Kumar ...Respondent
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
rt
For the Appellant : Mr. Vikram Thakur and Mr. Puneet
Rajta, Dy. A.Gs. for the State.
For the Respondent : Mr. Ashwani Sharma, Advocate.
Sanjay Karol, Judge (Oral)
Assailing the judgment dated 25.4.2013, passed by Sessions Judge, Hamirpur, H.P., in Sessions Trial No.04 of 2013, titled as State vs. Rajan Kumar, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.
2. It is the case of prosecution that on 2.4.2012, prosecutrix (PW-1) got her statement, under Whether reporters of Local Papers may be allowed to see the judgment?
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Section 154 Cr.P.C. (Ex.PW1/A), recorded to the effect that she had been subjected to sexual assault by the .
accused. Investigation conducted by SI Rajinder Kumar (PW-14), revealed that in the night of 25.3.2012 at about 10/11 p.m., accused trespassed into the house of the prosecutrix and sexually of assaulted her. She was threatened not to disclose the incident to anyone. Embolden by such act, on rt 1.4.2012 at 9.30 p.m., accused again trespassed into the house of the prosecutrix and bolted the door from inside. When Rajesh Kumar (PW-3) husband of the prosecutrix came, accused opened it and immediately ran away from the spot. Pradeep Kumar (PW-2), brother-in-law of the prosecutrix informed the police.
Under fear, prosecutrix could not inform the previous incident. With the completion of investigation, Challan was presented in the Court for trial.
2. The accused was charged for having committed offences punishable under the provisions of Sections 452, 376 and 506 of the Indian Penal ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...3...
Code, to which he did not plead guilty and claimed trial.
.
3. In order to prove its case, in all, prosecution examined fourteen witnesses and statement of accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and of false implication. He also led evidence in defence.
4. Appreciating the testimony of the prosecution rt witnesses, trial Court acquitted the accused of the charged offences for the reason that prosecution could not prove its case, beyond reasonable doubt. Hence the present appeal.
5. Having heard learned counsel for the parties and also perused the record, Court is of the considered view that in the instant case, no ground for interference is made out at all. Judgment rendered by the trial Court is well reasoned and based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...4...
is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
.
6. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material of on record, I am of the considered view that prosecution has failed to establish essential rt ingredients so required to constitute the charged offences.
7. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...5...
Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
.
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that of power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon rt fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "::: Downloaded on - 15/04/2017 21:20:56 :::HCHP
...6...
8. It is a matter of record, as is evident from the testimony of Pardeep Kumar (PW-2) that on .
1.4.2012, at about 9:30 p.m., he lodged a complaint with the police to the effect that "one person" had entered the house of his brother Rajesh Kumar.
Rapat in that regard came to be recorded which is of evident from the testimony of C. Suresh Kumar (PW-9).
9. rt Further, the Investigating Officer (PW14) admits that police official who visited the spot on 1.4.2012, could not find involvement of any person much less the present accused. Pardeep Kumar (PW-
2) also admits that the accused and the police remained at the spot throughout the night when certain statements of the witnesses were recorded by the police. This witness further admits presence of Ajay Kumar (Singh) (DW-1), Ward Punch on the spot.
10. Now incidentally, at the time when police first visited the spot, none pointed any finger of suspicion against the accused. His involvement never ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...7...
came to be disclosed to police; members of the Panchayat; or even by the prosecutrix to her family .
members.
11. Rajesh Kumar (PW-3), husband of the prosecutrix states that on 1.4.2012 at about 9:30 p.m., on his return, he knocked at the door of his of house which was bolted from inside and heard some noise coming from inside. The accused unbolted the rt door and tried to flee. Now, even this fact was not disclosed to the police by this witness. In any case, we find such version to be a mere exaggeration, for it not to be so recorded in his previous statement with which he was confronted.
12. Be that as it may, we find the defence taken by the accused of his being present on the spot, for repairing the CD Player at the house of the prosecutrix to have been probablized through Ajay Singh (DW-1).
13. Now when we examine the testimony of the prosecutrix, we find her to have deposed that on ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...8...
25.3.2012 at about 10/11 p.m. while she was sleeping in her room, which was unbolted, accused entered .
and after threatening her not to make any noise, lest she and her family be killed, he forcibly subjected her to sexual intercourse. Again, on 1.4.2012, in such like manner, accused entered her room at about 9:30 p.m. of and bolted the door from inside where after he started molesting her. As her husband came and started rt knocking at the door, she was saved. Thereafter, her other family members, including Pardeep Kumar (PW-
2) arrived and telephonically informed the incident to the police. But we do not find such version of hers to be truthful or inspiring in confidence and this we say for the reason that she nowhere states that she disclosed the incident of 25.3.2012 or the alleged threats to any one of her family members. For the first time, she disclosed it only to the police, as is so recorded in her statement. But even this version of hers stands materially contradicted both by her husband and brother-in-law.
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14. There are yet other reasons for disbelieving her testimony. She admits that in the .
night of 25.3.2012, in the adjoining room, which was inter-connected, her in-laws were also sleeping. She admits that between 25.3.2012 and 1.4.2012, she attended social functions with them. She had access of to public places and continued with her normal day-to-
day activities. She was under no threat at that point in time.
rt Her conduct and behavior was absolutely normal. Also, when her husband returned from Delhi, she did not disclose such fact to him, for which no plausible explanation is forthcoming on record. We do not find her version, of the accused having extended any threats or intimidated her, as a result of which, she did not raise any hue and cry, to be inspiring in confidence. There is nothing in her previous statement (Ex.PW1/A) with which she was confronted with.
15. Her version that the accused was having an evil eye on her for the last one year is also an ::: Downloaded on - 15/04/2017 21:20:56 :::HCHP ...10...
exaggeration as we do not find it to have been recorded in her previous statement (Ex.PW1/A) with .
which she was confronted.
16. She contradicts her version to the effect that in between 25.3.2012 and 1.4.2012, her husband continuously remained with her in her house.
of Whereas on one hand she wants the Court to believe that her husband had gone to Delhi, but on the other rt hand, she states that he remained with her, all throughout, particularly between the dates of both the incidents. It is not her case that during this time, accused had met her and extended threats. Now, if that were so, then what prevented the prosecutrix from disclosing the incident to her husband remains a mystery, for it is not the case of the prosecution or for that matter of the prosecutrix, that accused is either influential, resourceful or powerful person of the area.
After all, as is so admitted by her, he is a petty shopkeeper, carrying on repairs work of CD Players.
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17. It be also observed that prosecutrix never resisted the overt acts of the accused. Assuming .
hypothetically that she was threatened and intimidated by the accused at the time of first incident, then what stopped her from raising hue and cry when he entered the house second time, remains of un-explained by her. After all, at that point in time, her children were also with her inside the room.
18. rt Even by way of link evidence, prosecution has not been able to link the accused to the crime.
Report of the expert (Ex.PW13/A), with respect to DNA profiling is in the negative.
19. Having perused the testimonies of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. As such, findings returned by the Court cannot be said to be perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.
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20. The accused has had the advantage of having been acquitted by the Court below. Keeping in .
view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, since it cannot be said that the Court of below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted rt into travesty of justice, no interference is warranted in the instant case.
For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(Ajay Mohan Goel),
October 3, 2016 (KS) Judge.
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