Punjab-Haryana High Court
Harbans Singh vs State Of Punjab And Another on 8 April, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM-A No. 157-MA of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRM-A No. 157-MA of 2013
Date of decision : 8.4.2013
Harbans Singh ........Applicant-appellant
Vs.
State of Punjab and another .......Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
Present:- Mr. Gopal Singh Nahel, Advocate, for the applicant-appellant
---
Jasbir Singh, J.
Respondent No.2 was made to face trial in FIR No. 76 dated 17.8.2012, Police Station Sadar Nabha, for commission of offences punishable under Sections 363, 366A and 376 IPC. It was an allegation against him that he had kidnapped the prosecutrix on 10.7.2012 and committed rape upon her against her consent.
The process of law was started on a statement made by applicant Harbans Singh-father of the prosecutrix (PW-1) to ASI Manjit Singh (PW-5) on 17.8.2012.
Under order passed by this Court on 1.9.2012, the prosecutrix and the respondent-accused were produced before Deputy Superintendent of Police at Nabha regarding providing security to them. They were handed over to ASI Manjit Singh regarding verification of age of the prosecutrix. As per medical opinion given by the doctor, she was declared CRM-A No. 157-MA of 2013 -2- less than 18 years of age.
The Investigating Officer got the prosecutrix examined, collected other evidence and after recording statements of the witnesses, final report was put in Court. Copies of the documents were supplied to the respondent-accused as per norms. Case was committed to the competent Court for adjudication on 2.1.2013. The respondent-accused was charge sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced 9 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, statement of the respondent-accused was recorded under Section 313 Cr.P.C. Incriminating evidence on record, was put to him, which he denied, claimed innocence and false implication. He took up the following plea in his defence :-
"That the prosecutrix left her parent's house with her own will and wishes and she has love affair and affection with him and always asked him to perform marriage and at her wishes, he had decided to solemnize marriage with her and in this regard they solemnized the marriage. Thereafter, they both jointly moved petition under Section 482 Cr.P.C. for the protection before the Hon'ble Punjab & Haryana High Court, where the prosecutrix furnished her own affidavit with regard to her own marriage and age and the Hon'ble High Court granted protection to them and thereafter, they appeared before the DSP, Nabha, where she stated that she is living with him with her sweet will and without pressure. She was produced before SDJM, Nabha, where she gave statement in his favour, but with their consent, she was taken by her parents and under pressure and threat of her parents, she changed her mind and CRM-A No. 157-MA of 2013 -3- stand and falsely implicated him in the present case."
He also led evidence in defence.
The trial Judge on appraisal of evidence, found the respondent-accused not guilty. By making reference to the School Leaving Certificate, entry made in the Births Register and other attending evidence, the trial Court rightly came to a conclusion that at the time of alleged occurrence, the prosecutrix was more than 18 years of age. Good reasons are given to say so in Paras No. 26 to 37 of the judgment under challenge.
It was further noticed that the prosecutrix was a consenting party. She had gone with the respondent-accused of her own. To support above said observation, it was said as under :-
"40. No doubt, the prosecutrix has made clear cut allegations against the accused with regard to commission of rape and made allegations for kidnapping and abduction, but it has already been discussed and this Court came to the conclusion with regard to age of the prosecutrix being above 18 years. We have to see here only whether the prosecutrix was a consenting party or not. One thing is crystal clear that the accused is first cousin of the prosecutrix and it is admitted by the prosecutrix herself that he used to come to their house regularly and used to commit rape with her, in one small room, but she did not tell anybody due to fear and it is admitted by herself that the accused kept her at several places, but she has not made hue and cry due to fear or accused put one handkerchief on her mouth, but the said story concocted by the prosecutrix does not seem to be reliable."
It has also come on record that before the Deputy Superintendent of Police, Nabha, the prosecutrix had made a statement that CRM-A No. 157-MA of 2013 -4- she has gone with the respondent-accused of her own. She had signed affidavit Ex. D-3 and document Ex.D8 to state that she got married with the respondent-accused. Photographs Ex. D-4 to D-7 also referred to in that regard. It has also come on record that the couple had come to this Court seeking protection from parents of the prosecutrix. In her statement recorded under Section 164 Cr.P.C., she has exonerated the respondent- accused. To say that the prosecutrix had gone with the respondent-accused of her own, it was observed as under :-
"It is duly proved that the prosecutrix was above 18 years of age at the time of occurrence and from the cumulative reading of the facts on record, it is crystal clear that both the prosecutrix and the accused, had some affair and the prosecutrix eloped with the accused, which is apparent from the material improvements she had made in her statement while deposing before the Court and the accused was not in a position to threaten the prosecutrix. She did not raise any alarm. It can be safely concluded that the prosecutrix accompanied the accused with her own free will and accord. It means that the prosecutrix was a consenting party."
Delay in getting the FIR recorded, was also rightly taken against the prosecution, for which no explanation has been given.
This Court feels that the view taken by the Court below is perfectly justified and as per evidence on record.
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 No. 157-MA of 2013 -5-
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 the trial Court depending on the materials placed."CRM-A No. 157-MA of 2013 -6-
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 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 CRM-A No. 157-MA of 2013 -7- 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 applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge 8.4.2013 Ashwani