Punjab-Haryana High Court
Anita vs State Of Haryana And Others on 6 September, 2013
Author: Inderjit Singh
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Misc. No.A-1006-MA of 2012
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Date of decision:6.9.2013
Anita
...Applicant
v.
State of Haryana and others
...Respondents
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Coram: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mr. Justice Inderjit Singh
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Present: Mr. Sandeep Kumar Yadav, Advocate for the applicant.
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Inderjit Singh, J.
This criminal miscellaneous application has been filed under Section 372 read with Section 378(4) of the Code of Criminal Procedure (`Cr.P.C.' for short) for seeking leave to file an appeal against the judgment dated 7.11.2012 passed by Additional Sessions Judge, Narnaul, vide which accused-respondents No.2 to 6, namely, Jitender alias Jitu, Bhuru Ram, Ram Bhagat alias Mohan, Pawan Kumar and Mir Singh were acquitted of the charges framed against them for the offences under Sections 328, 342, 376 (2)G and 120-B IPC.
The above respondents were made to face trial in FIR No.471 dated 31.12.2010 registered at Police Station City Narnaul for the commission of offences punishable under Sections 328, 342, 376(2)G and Parmar Harpal Singh 2013.10.04 10:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [2] 120-B IPC.
The brief facts of the prosecution case as noted by the learned trial Court are that the prosecutrix got registered FIR. As per prosecution version, it was stated that the prosecutrix is student of third Semester in SAN Business School and was posted as ASM (Assistant Sales Manager) in AVIVA Life Insurance Company Limited, Jaipur. Her duty was to visit the field and to explain about insurance policies to the persons and to get insurance policy. On 10.11.2010, she had come into contact of Mir Singh. Thereafter, Mir Singh brought her into contact of Ram Bhagat alias Mohan Singh, Jitender alias Jitu, Pawan Kumar, who is friend of Mir Singh, Sunder alias Udala and Bhuru Ram. On 29.12.2010 at about 4.00 p.m., on the asking of Mir Singh, she came to Narnaul. Mir Singh arranged her stay in Narula Hotel, Narnaul. Thereafter on 30.12.2010 at about 10.00 a.m., she asked Mir Singh that she had to explain to him the insurance plan. Then Mir Singh asked her to come to Gaurav Market, Singharia Road. She reached Gaurav Market, where she while sitting in a tea shop, explained the insurance plan to Mir Singh, Sunder, Jitender, Ram Bhagat, Pawan and Bhuru above said. Meanwhile Jitender, who has tea shop brought tea containing intoxicating material and made her to drink that tea on which she started becoming unconscious. Then, Mir Singh put down the shutter of shop and Ram Bhagat, Jitender confined her in shop and committed rape upon her forcibly against her wishes. Thereafter, Mir Singh forcibly raped her and then Bhuru Mistri laid upon her and committed wrong act. After that she became unconscious and she did not know what happened with her. Parmar Harpal Singh 2013.10.04 10:18 On the basis of this application, formal FIR was registered. Spot was I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [3] inspected. Site plan was prepared. Statements of witnesses were recorded. After necessary investigation, challan was presented in the Court.
On presentation of challan, the trial Court finding prima facie case against accused-respondents No.2 to 6 framed charges for the offences under Sections 120-B, 328, 342 and 376(2)G IPC, to which the accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined witnesses including the doctor, the Investigating Officer and the prosecutrix. The prosecutrix herself appeared as PW-11 and deposed that she had come to Narnaul to appear in an interview in Reliance Company about 10 days before Deepawali festival in the year 2010. Incidentally, she came into contract of Pawan Kumar and his one companion on that day. Pawan Kumar represented that he was also in profession of marketing and he offered his help to her in the business and he also offered her to facilitate a job in HDFC Bank at Narnaul. She went to Jaipur. After two-three days, Pawan Kumar told her that he could secure a job for her but he asked her to pay at least `50,000/-. On 3.12.2010, she had deposited a sum of `45,000/- in the account as directed by Pawan Kumar in HDFC Bank Branch Sodala, Jaipur. Then Pawan Kumar and his companion called her for interview at Narnaul on 14.12.2010. She came to Narnaul on 14.12.2010. After reaching Narnaul, Pawan Kumar told her that the madam who was to take the interview was not available on that day and that he would later on inform her about a fresh date after consulting that madam. Then she returned to Jaipur. One day, Pawan Kumar told her that one of his relatives, Parmar Harpal Singh 2013.10.04 10:18 namely, Ram Bhagat makes the fixed deposits every year and Ram Bhagat I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [4] could help her. Pawan Kumar and his friend arranged her meeting with Ram Bhagat at Midway Motel at Behror. There Ram Bhagat told her that he would make fixed deposit after selling the mustard. After explaining the plan of the Company to him, she returned to Jaipur. On 29.12.2010, Pawan Kumar and his same friend had assured her that some of their friends wanted to get the policies and called her to Narnaul and they also told her that they would call Ram Bhagat also to Narnaul on that day. On 29.12.2010, she came to Narnaul. Pawan Kumar and his friend told her that it was raining on that day and the bus services were not available due to `Gurjar agitation' and on that account Ram Bhagat would come on next day. In order to return back to Jaipur, she went to Bus Stand, Narnaul but no bus service for Jaipur was available. She told this problem to Pawan Kumar and his friend, who arranged her stay in Narula Hotel, Narnaul. On 30.12.2010 at about 10.00 a.m., she made a telephonic call to Pawan Kumar and he told her that Ram Bhagat would come by 12.00/12.30 p.m. Then she made another phone call to Pawan Kumar at about 11.45 a.m. Then he told her that Ram Bhagat was late and would come by 2.00/2.30 p.m. Thereafter, she left the hotel at about 1.00 p.m. She went to a tea shop at Gaurav Market, Narnaul at about 2.00 p.m. which was the place told by Pawan Kumar to her. On that shop Pawan Kumar, Ram Bhagat and three more persons were sitting. As soon as, she entered in that shop, one of those three persons went out of the shop and she could not see the face of that person. Then Ram Bhagat called a person to bring tea and asked her to explain the plans of the company again. When she was filling the form, she started Parmar Harpal Singh 2013.10.04 10:18 taking tea. She sipped half cup of tea and put the same on the table since its I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [5] taste was bitter. Then Ram Bhagat told her to have the tea first and thereafter fill the form. She told him that the taste of tea was somewhat bitter then Pawan Kumar said that it was raining and also the cold weather and on that account more ginger was put in the tea. On his asking, she sipped the remaining tea also. Meanwhile, she felt that there was smell of alcohol and probably they had consumed alcohol. Thereafter, Ram Bhagat and Pawan started some filthy conversation inter se. Ram Bhagat told her that he was giving her a cheque of `1 Lac and what he would get in return. She told him that as per the policy of the company, he would get a silver coin. Then Ram Bhagat started laughing and said that he was not requiring the silver coin and was wanted some services (Sewa Pani). She asked him what he meant by (Sewa Pani). He said that she being a girl was well aware what he meant by 'Sewa Pani' and also said that something is to lost in lieu of gaining something. She told him that she does not require such type of business and she was not that type of girl and she returned his cheque. In order to go outside, when she stood up, Pawan Kumar hurled vulgar abuses on her and gave her slaps. Pawan Kumar pushed her in the interior portion of the shop. She fell down on a gunny bag spread there. Ram Bhagat and Pawan were in the interior portion of the shop while three persons were in the outer portion of the shop. She requested them to let her go. Her hands and legs were becoming senseless. She also deposed that she was feeling giddiness. She was making attempt to save herself from them but she was not able to speak even. When she tried to save herself, Pawan Kumar stubbed her with a lighting cigarette on her left hand and left leg and Ram Parmar Harpal Singh 2013.10.04 10:18 Bhagat started taking off her clothes. He broke two three buttons of her I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [6] shirt in hurry. He also torn her under garments. Then Ram Bhagat committed rape upon her. Thereafter, Pawan Kumar committed rape upon her. Then she became unconscious and she did not know what happened with her thereafter. PW-12 Dr. Anjali Saini medico-legally examined the prosecutrix. In her opinion, she stated that possibility of sexual assault upon the prosecutrix cannot be ruled out. All these facts had been noted by the learned trial Court while deciding this case.
At the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution but they denied the correctness of the evidence and pleaded themselves as innocent. They opted to lead defence evidence. In support of their case, they examined DW-1 Sunil Kumar, DW-2 Parvinder Kumar, Zonal Manager of Tikona Digital Network Limited and DW-3 Vikas Kumar.
The learned trial Court after going through the evidence and material on record vide impugned judgment acquitted accused-respondents No.2 to 6 by giving benefit of doubt.
The learned trial Court had acquitted the accused firstly on the ground that the prosecutrix had given different versions of the occurrence at different times. The earliest version of the prosecutrix had been given in the statement Ex.P.14 made before the Police on 31.12.2010, on the basis of which formal FIR was lodged. The second improved version came in the statement Ex.P.15 recorded under Section 164 Cr.P.C. followed by her written complaint Ex.D.1 made to superior Police Officials on the basis of Parmar Harpal Singh which, she approached Hon'ble High Court. Then came her statement 2013.10.04 10:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [7] Ex.P.16 before the trial Court prior to filing of application under Section 319 Cr.P.C. and then completely a new version came, when she appeared as PW-11.
From the perusal of the FIR and also the statement given in the Court, it is clear that the prosecutrix had given totally different versions. In the Court, she had not named even Mir Singh. Earlier as per FIR, everything revolved around Mir Singh. She came to Narnaul on the asking of Mir Singh, who made her stay in Narula Hotel, Narnaul, as Mir Singh was known to the prosecutrix but when she appeared in the Court, Pawan Kumar accused was substituted for Mir Singh. Then again on 30.12.2010, Mir Singh asked her to come at Gaurav Market, Singharia Road, whereas in the Court the prosecutrix stated that Pawan Kumar told her that Ram Bhagat would come late and she went to Gaurav Market. She did not name the other accused, namely, Jitender, Bhuru etc. also while appearing in the Court. Again the version given in the FIR at the tea shop and while appearing as PW-11 is also totally different. Similar is the case when she made statement under Section 164 Cr.P.C.
The learned trial Court has minutely gone through the versions given by the prosecutrix at various times and also improvements made in the versions. There is only statement of prosecutrix on which the case of the prosecution is based. But while making improvements in her version and also giving separate statements, a reasonable doubt exists regarding the prosecution version. The Police on the statements found case against accused Jitender, Bhuru and Mir Singh and filed the report under Section Parmar Harpal Singh 2013.10.04 10:18 173 Cr.P.C. against them, while finding Ram Bhagat and Pawan Kumar as I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [8] innocent. When the trial followed, the prosecutrix made statement against all the accused including Ram Bhagat and Pawan Kumar and accused Ram Bhagat and Pawan Kumar were summoned by the Court. Then again, the prosecutrix changed the version and put the allegations only against Pawan Kumar and Ram Bhagat and resiled from the statement qua the role of Jitender, Bhuru and Mir Singh. The learned trial Court on scrutiny of the evidence had correctly held that the time and place of occurrence remained the same but the involvement of different accused has been changed materially. The prosecutrix has substituted Pawan Kumar for Mir Singh. The learned trial Court has correctly came to the conclusion with correct reasoning that the prosecutrix is not coming out with the truth and her statement is fraught with falsehood and cannot be allowed to abuse the process of law. The Court has also found from the evidence that her conduct in disowning her frequent visits to jail to meet Depender Yadav, who is accused in a rape case of niece of Ram Bhagat goes a long way to suspect her version. Ram Bhagat is a witness in that case.
The reasoning given by the trial Court is correct and as per law. The trial Court has correctly appreciated the evidence. With such type of evidence, it is unsafe to convict the accused on the sole testimony of the prosecutrix. Nothing has been pointed out to show that the findings are incorrect and not as per law. There is nothing on the record to show that the judgment is perverse or any material evidence has not been discussed by the trial Court or the reasoning is not as per evidence and law. Therefore, no interference is required for in the judgment passed by the learned trial Parmar Harpal Singh 2013.10.04 10:18 Court.
I attest to the accuracy andintegrity of this document Chandigarh
Cr. Misc. No.A-1006-MA of 2012 [9] Hon'ble Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, has held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
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 and others v. The State of Tripura, (2011) 9 SCC 479, decided on 5.9.2011, the Hon'ble 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 Parmar Harpal Singh 2013.10.04 10:18 I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [10] 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."
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 Parmar Harpal Singh 2013.10.04 10:18 and/or law appearing in the judgment, the appellate court would I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [11] 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 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."
Learned counsel for applicant has failed to show any error in law on the basis of which interference is required by this Court in the judgment passed by Additional Sessions Judge, Narnaul. The learned Additional Parmar Harpal Singh 2013.10.04 10:18 Sessions Judge has correctly appreciated the evidence and has given I attest to the accuracy and integrity of this document Chandigarh Cr. Misc. No.A-1006-MA of 2012 [12] findings as per law.
The application is dismissed accordingly.
(Jasbir Singh) (Inderjit Singh)
Judge Judge
September 6, 2013.
*hsp*
Parmar Harpal Singh
2013.10.04 10:18
I attest to the accuracy and
integrity of this document
Chandigarh