Himachal Pradesh High Court
State Of Himachal Pradesh vs Mohammad Yaqub And Others on 19 August, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Criminal Appeal No.466 of 2011 Reserved on : 8.7.2015 Date of Decision : August 19, 2015.
State of Himachal Pradesh ...Appellant.
of Versus Mohammad Yaqub and others ...Respondents.
Coram:
rt The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P.S. Rana, Judge.
Whether approved for reporting? Yes. 1 For the Appellant : Mr. Ashok Chaudhary, Mr. V.S. Chauhan, Additional Advocates General, and Mr. J.S. Guleria, Assistant Advocate General.
For the Respondents : Mr. Anup Chitkara, Advocate.
Sanjay Karol, Judge State has appealed against the judgment dated 29.7.2011 of the learned Additional Sessions Judge, Fast Track, Kullu, Himachal Pradesh, passed in Sessions Trial No.19 of 2010, titled as State v.
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Mohammad Yaqub & others, challenging the acquittal of respondents Mohammad Yaqub, Liyakat Ali, Meer .
Husain, Ibrahim, Ali Husain and Nazar Bibi (hereinafter referred to as the accused).
2. It is the case of prosecution that on 13.7.2008, prosecutrix, daughter of Liyakat Ali (PW-2), of resident of Tharas, Tehsil Kullu, District Kullu, Himachal Pradesh, was kidnapped by accused Mohammad Yaqub and in a vehicle, driven by Ghanshyam (PW-6), taken to rt village Dudar, where he subjected her to rape and accused Ibrahim brought certain papers, which she was forced to sign as 'Mehruffa Begum'. On 14.7.2008, she was taken to Ner Chowk (District Mandi, Himachal Pradesh) and kept in the house of Gulzar (PW-3), where again she was subjected to rape. For two months, she stayed with accused Mohammad Yaqub in the house of Gulzar. Whereafter, she was taken to village Bagayan and made to stay in the house of Shaffi Mohammad (not examined). On 24.12.2008, she was taken to the house of Ali Husain (not examined) in village Gazipur, District Ropar (Punjab). On 16.3.2009, accused Yaqub Mohammad had to leave Gazipur. Same night as also ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...3...
on 18.3.2009, accused Liyakat Ali sexually assaulted her. When the incident was narrated to accused Nazar .
Bibi, not only she turned a blind eye, but after removing her clothes, committed an indecent act. Also, her ear rings were taken away by accused Nazar Bibi.
On 20.3.2009, prosecutrix came to Mandi with accused of Yaqub Mohammad and Liyakat Ali. On 22.3.2009, she freed herself and returned home. Prosecutrix narrated the incident to her mother, but since her father had rt gone to Punjab, in connection with some work no report could be lodged. Only on his return on 10.6.2009, the incident was reported to the police vide application (Ex.PW-1/A), on the basis of which FIR No.110, dated 15.6.2009 (Ex.PW-12/A), was registered at Police Station Bhuntar, District Kullu, Himachal Pradesh, by SHO Narain Singh (PW-12). Prosecutrix was got medically examined from Dr. Sarita Sharma (PW-5). Investigation was conducted, both by SHO Narain Singh (PW-12) and Krishan Chand (PW-11).
Proof with regard to age of the prosecutrix was collected from Than Singh (PW-7). With the completion of investigation, which, prima facie, revealed complicity ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...4...
of the accused in the alleged crime, challan was presented in the Court for trial.
.
3. Accused persons were charged as under:
Accused Offence
Mohammad Yaqub and Sections 366, 376,
Liyakat Ali 376(g), 342, 506
read with Section 34
IPC and Section
of
120B IPC.
Ibrahim Sections 366, 342,
506 read with
Section 34 IPC and
rt Section 120B IPC.
Ali Husain, Meer Husain Sections 342, 506 and Nazar Bibi read with Section 34 IPC and Section 120B IPC.
All the accused pleaded not guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 12 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they pleaded innocence and false implication.
5. Based on the testimonies of the witnesses and the material on record, trial Court acquitted all of the accused persons of all the charged offences.
Hence, the present appeal by the State.
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6. We have heard Mr. Ashok Chaudhary, Mr. V.S. Chauhan, learned Additional Advocates General, .
on behalf of the State as also Mr. Anoop Chitkara, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed of on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered rt by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. 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 on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
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8. 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 of 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 Swarup v.
rt 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 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 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 ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...7...
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." "
9. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must of be proper legal evidence and material on record to record the conviction of the accused. Conviction can be based on sole testimony of the prosecutrix provided it rt lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.
10. It is a settled principle of law that testimony of prosecutrix is sufficient enough to convict the accused if it inspires confidence. (See: Rajesh Patel Versus State of Jharkhand, (2013) 3 SCC 791 and State of Rajasthan Versus Babu Meena, (2013) 4 SCC 206).
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11. The Courts while trying an accused on the charge of rape, must deal with the case with utmost .
sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character.
12. of However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus rt never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused.
Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence.
However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide:
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Tukaram & Anr. v. The State of Maharashtra, (2979) 2 SCC 143; and Uday v. State of Karnataka, (2003) 4 SCC 46.
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13. The Court is duty bound to appreciate the evidence in the totality of the background of the entire case. It is also settled proposition of law that in case evidence read in its totality and the story projected by of the prosecutrix is found to be improbable, her version is liable to be rejected. The apex Court in Narender Kumar Versus State (NCT of Delhi), (2012) 7 SCC 171, rt has held as under:-
"20. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case.
21. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...10...
the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide: Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & .
Anr., (2003) 3 SCC 175; and Vishnu v. State of Maharashtra, (2006) 1 SCC 283.
22. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even of though her version may be otherwise, no reliance can be placed upon her evidence. (Vide: Suresh N. Bhusare & Ors. v. State of Maharashtra, (1999) 1 SCC 220.
rt
23. In Jai Krishna Mandal & Anr. v. State of Jharkhand, (2010) 14 SCC 534, this Court while dealing with the issue held:
"4....the only evidence of rape was the statement of the prosecutrix herself and when this evidence was read in its totality, the story projected by the prosecutrix was so improbable that it could not be believed."
24. In Rajoo & Ors. v. State of Madhya Pradesh, (2008) 15 SCC 133, this Court held: (SCC p. 141, para 10) "10....that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on par with that of an injured witness and if the evidence is reliable, no corroboration is necessary."
The court however, further observed:
"11.......It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...11...
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..... 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."
25. In Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, this Court held has under:
of "9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold rt 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."
14. In the aforesaid backdrop we proceed to discuss the evidence.
15. Medical opinion (Ex.PW-5/A), so proved by Dr. Sarita Sharma, reveals that prosecutrix was habitual to sexual intercourse. No injury was found on the body of the prosecutrix.
16. Age of the prosecutrix, as is evident from the Birth Certificate (Ex.PW-7/A), so proved by Than Singh (PW-7), is more than 18 years. Radiological age, as proved by Dr. Sarita Sharma, also corroborates such fact.::: Downloaded on - 15/04/2017 18:46:26 :::HCHP
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17. When we peruse the testimony of the prosecutrix and her father Liyakat Ali (PW-2), we find .
certain undisputed facts emerging on record.
Prosecutrix was found missing from her home on 13.7.2008. Resultantly, on 14.7.2008, Liyakat Ali lodged a missing report at Police Station, Bhuntar, as of also Gram Panchayat Rot. Now, prosecutrix admits that no action was taken by the police on such complaint, rt for the reason that accused Yaqub Mohammad had produced certificate of having performed his marriage with her. Liyakat Ali admits that his daughter-in-law (wife of his son Arshad) is daughter of brother of accused Meer Husain. He never took up the matter with any of the relatives or searched either for the prosecutrix or the accused after July, 2008. No grievance of whatsoever nature was ever made out with any person. Evidently, in the month of July, 2008 itself, the matter stood closed.
18. In the instant case, the alleged offence took place on 13.7.2008 and the incident was reported to the police only on 10.6.2009, i.e. after a period of about 11 months.
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19. It has come in the testimony of the prosecutrix that she freed herself and returned home .
on 22.3.2009. Even thereafter, matter was not reported to the police. She wants the Court to believe that since her father was away, report could not be lodged with the police. But when we peruse the of testimony of her father, we find that he has got three sons and three daughters with the prosecutrix being eldest of the daughters. The sons and the other two rt daughters could have lodged the report with the police, any time between 22.3.2009 and 10.6.2009. Delay in lodging the complaint raises serious doubt with regard to the correctness of version of the prosecution.
20. Further, perusal of testimony of the prosecutrix, we find it to be not inspiring in confidence.
She states that on 13.7.2008, she was taken away in a vehicle and under threat so extended by accused Yaqub Mohammad, signed certain papers in village Dudar, where she was made to reside in the house of Gulzar. She spent some time in the house of Rafi Mohammad in village Bagayan and few months in the house of Ali Husain in village Gazipur (Punjab). Not ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...14...
only accused Yaqub Mohammad subjected her to sexual assault, but even accused Liyakat Ali raped her .
on 16.3.2009 to 18.3.2009 and when she reported the matter to accused Nazar Bibi, not only she was ridiculed, but subjected to an indecent act . Her clothes were removed. Also, she was robbed of her ear rings.
of On 20.3.2009, she returned to Mandi with accused Liyakat Ali and Yaqub Mohammad and finding an opportunity, rt managed to escape on 22.3.2009.
Thereafter, she narrated the incident to her mother and on return of her father on 8.6.2009, matter was reported to the police.
21. Now incidentally, she does not ascribe any overt acts of threats, intimidation, coercion or physical assaults against accused Meer Husain, Ibrahim and Ali Husain. That apart, she admits that the places, where she stayed, were open to which she had free access. It is not her case that she was confined to the four corners of a walled room. There were neighbours adjoining to the houses. She moved freely from place to place. Her bald assertion of threats extended to her does not inspire confidence, in view of the fact that ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...15...
wherever she stayed there were family members, including ladies, residing there. She could have .
conveniently informed any one or managed to escape from there. She admits to have signed papers, revealing the factum of her marriage with accused Yaqub Mohammad. It is for this reason, police did not of pursue the matter, any further, on the complaint filed by her father. She further admits to have stayed in the house of Gulzar Mohammad (PW-3) and Balak Ram rt (PW-8), both of whom have unrebuttedly deposed that prosecutrix and accused Yaqub Mohammad were living together as husband and wife alongwith their family members. Prosecutrix voluntarily stayed in their houses, without any objection or demure. She was happy living there. Shaffi Mohammad and Ali Husain in whose houses prosecutrix spent long time have not been examined in the Court. They could have unfolded the events which took place in their houses.
22. Ghanshyam (PW-6), Driver of the taxi, in which the prosecutrix voluntarily travelled from Tharas, has unrebuttedly deposed that behaviour of the ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...16...
prosecutrix was normal. Evidently, nothing objectionable was found even by him.
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23. Prosecutrix admits to have stayed in a hotel at Pandoh, which fact also stands proved through the testimony of Gurdev (PW-4). Nothing objectionable was found even there. Her conduct was normal. She of could have certainly reported the matter to him or escaped from there.
24. rt Further, prosecutrix admits that her marriage was registered in the village Panchayat. To us, it appears that prosecutrix voluntarily married accused Yaqub Mohammad, travelled freely with him from place to place, lived with him as his wife, without any threat, coercion or intimidation.
25. She admits to have travelled alone from Ner Chowk to Ropar in a bus. At least there she was free to lodge a complaint or escape. She was not under any duress, threat or intimidation. She could have conveniently returned home. It is not that she was not familiar with the plae or terrain, for after all she admits to have taken out `100/- from the shirt of accused ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...17...
Yakub Mohammad at Ropar and then travelled in a bus upto Ner Chowk.
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26. As such, we do not find testimony of the prosecutrix to be inspiring in confidence.
27. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, of cogent, convincing and reliable piece of evidence so as to prove that the accused persons have committed the offence they have been charged for.
rt
28. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
29. The accused have 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, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The ::: Downloaded on - 15/04/2017 18:46:26 :::HCHP ...18...
present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
of
( P.S. Rana ),
August 19, 2015(sd) Judge.
rt
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