Punjab-Haryana High Court
Laxmi vs State Of Haryana & Ors on 21 October, 2022
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CRM-A-410-MA-2017 -1-
204 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-410-MA-2017
Reserved on :21.10.2022
Pronounced on :04.11.2022
Laxmi ......... Appellant
Versus
State of Haryana and others ........ Respondents
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr.Arnav Sood, Advocate for the appellant.
Mr. Hitesh Pandit, Addl. AG, Haryana.
None for the private respondents.
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JAGMOHAN BANSAL, J.
1. The appellant at whose complaint FIR No.74 dated 09.04.2015 under Sections 363, 366 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') at Police Station Kunjpura, District Karnal was registered, has preferred the present appeal seeking setting aside of judgment and order dated 14.09.2016 whereby learned Additional Sessions Judge cum Special Court for the Cases of Heinous Crime against Women, Karnal (for short 'trial court') has acquitted the respondents on the ground that prosecution has miserably failed to prove its charges against both of the accused.
Brief Facts:
2. The facts emerging from the record and which are necessary for the adjudication of present appeal are that on 1 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -2- 09.04.2015 appellant alongwith Jitender S/o Om Parkash, R/o Kunjpura visited the Police Station and lodged a complaint alleging that her daughter (for short prosecutrix) about 10 days back had been enticed by one Shubham and taken away from her lawful custody with intent to establish physical relation with her daughter and to marry against her wishes. Her daughter returned to village Kunjpura after two days and when she was on her way to home, Malu S/o Mahender, R/o Kunjpura met her and committed rape upon her daughter. She further alleged that Jeet S/o Diwan, R/o Amritpur Kalan about 10 days prior to above incident committed rape upon her daughter-prosecutrix. The aforesaid incident was revealed to her by the prosecutrix later on and she took away her daughter to a nurse, namely Vijay, who apprised that prosecutrix was carrying pregnancy. She got nervous and got her daughter medically examined from another doctor wherein it was found that she was not carrying any pregnancy.
2.1 On the basis of aforesaid complaint (Ex.P-4) an FIR No.74 dated 09.04.2015 was registered at Police Station Kunjpura, District Karnal. It is apt to mention here that FIR was registered under Sections 363/366 IPC apart from Section 4 of POCSO Act. There was allegation of abduction and attempt to marry against the wishes qua Shubham and there was no allegation of commission of an offence as postulated 2 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -3- under Sections 363/366 IPC against present respondents i.e.Jeet and Ranjeet Malu.
2.2 The Police Authorities had recoded the statement of the prosecutrix under Section 161 Cr.P.C. in the presence of Legal Aid Counsel Sangeeta Mehta. On 10.04.2015, statement of prosecutrix was recorded under Section 164 Cr.P.C.
wherein prosecutrix inter alia disclosed that she had gone to Kurukshetra with Shubham at her own will and Shubham did not commit any wrong act with her. She wanted to marry him and when she was coming back from Kurukshetra, Malu who is residing in their neighbour forcibly caught her and took away in an empty plot. Malu committed wrong act with her and this incident took place on 22.03.2015. 10 days back Jeet forcibly entered her home and committed wrong act with her. At that time, nobody was at home. She does not want to stay at home and she does not want to go along with her parents. 2.3 The FIR culminated into arrest of respondents and police report under Section 173 of Cr.P.C. wherein private respondents herein Jeet S/o Diwan, Ranjeet Malu S/o Mahender Singh were arrayed as accused for commission of an offence under Sections 363/366 IPC and Section 4 of POCSO Act. It is apt to mention here that there was no allegation of commission of an offence punishable under Sections 363/366 IPC against Jeet and Ranjeet still challan under Section 173 was presented against both of them. The 3 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -4- allegation of commission of an offence punishable under Sections 363/366 IPC was against Shubham and he was not arrayed as an accused.
3. The prosecution to bring its case home examined 11 witnesses i.e. PW-1 to PW-11. Apart from 11 witnesses, the prosecution relied upon a number of documentary evidences which included FSL report, statement made under Section 164 Cr.P.C. and different applications moved during the course of investigation. The respondents were examined under Section 313 of Cr.P.C. and both of them denied allegations and pleaded that they have been falsely implicated.
4. The trial Court after considering deposition of witnesses and documents on record came to a conclusion that prosecution has failed to bring home guilt of accused beyond reasonable doubt of commission of offences punishable under Sections 363/366 IPC and Section 4 of POCSO Act. The trial Court noticed the fact that prosecutrix had made similar allegations against Sanjay @ Sanju who was later on acquitted by judgment dated 01.08.2013 (Ex.D-7) passed by Additional Sessions Judge, Karnal.
5. The complainant-mother of prosecutrix has preferred present appeal seeking setting aside of judgment dated 14.09.2016 whereby respondents have been acquitted. The appeal is accompanied with an application under Section 4 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -5- 378(3) Cr.P.C. seeking leave against impugned judgment of acquittal.
Contention of the appellant:
6. Learned counsel for the appellant vigorously contended that the trial Court has totally ignored testimony of prosecutrix (PW-4) and appellant (PW-3), who had categorically disclosed about the incident. The statement of prosecutrix cannot be ignored especially when she was minor and there was no motive for making any false allegations against respondents. The acquittal of Sanjay @ Sanju against whom FIR alleging rape was registered cannot be a ground to assess credibility of statement of prosecutrix. The acquittal of Sanjay @ Sanju cannot be a ground to believe that prosecutrix had not been subjected to rape by present respondents.
7. We have perused the record and heard arguments of learned counsel for the parties.
Discussion and findings:
8. The prosecution has examined 11 witnesses, however, in our opinion, four are material and relevant witnesses, whose depositions are scrutinized as below: -
(i) The appellant (PW-3) who was complainant deposed that 10 days earlier to 09.04.2015, Shubham S/o Vinod had
5 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -6- abducted her daughter by inducing her for marriage. Shubham ravished her and further extended threats to kill her. Her daughter after two days returned to home at Kunjpura and Ranjeet Malu while she was coming back to home committed rape upon her. Jeet committed rape upon her daughter 10 days prior to abduction by Shubham. Her daughter was 16 years and 05 months old at the time of aforesaid incident. She had been threatened for compromise.
(ii) Prosecutrix (PW-4) deposed that she was enticed away by Shubham who abducted her to his maternal uncle's home at Kurukshetra where he committed rape upon her and left her at the bus stand of Kurukshetra. While she was coming back to her home at Kunjpura, Malu met her and forcibly took away her to an old house and committed rape upon her. 10 days prior this incident, Jeet had ravished her and threatened with dire consequences, if she would disclose the said occurrence to anybody. She proved her statement recorded by Legal Aid Counsel as Ex. P-7 and by learned Magistrate under Section 164 Cr.P.C. as Ex.P-8. She stated that she was under threat from police officials Jaswinder Kaur and Santosh not to suffer any statement against Shubham.
(iii) Dr. Mala (PW-9) tendered her affidavit in her examination-in-chief and proved the MLR of prosecutrix apart from Salwar Ex.MO3 contained in the sealed parcel, which 6 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -7- was sealed by her after medically examining the prosecutrix on 09.04.2015 and two glass slides Ex.MO4 to Ex.MO6 containing vaginal discharge and one vial containing her pubic hair.
(iv) Meenakshi Arora (PW-2) proved the application of police dated 10.04.2015, seeking age proof of prosecutrix as per her school record and her endorsement regarding the date of birth of prosecutrix as per school record Ex.P-2/A.
9. The cross examination (PW-3) inter alia discloses that she did not move any complaint against the person who used to extend threats to her nor could she reveal the dates of receiving the alleged threats. She had never moved any complaint against Shubham on account of kidnapping of her daughter and she disowned the complaint (Ex.P-4) alleged to be filed by her before the police. The prosecutrix was taken away to nurse (Vijay) after a gap of 3 days of her return from Kurukshetra and she was got checked up from doctor after 4 days from her check up by the nurse.
9.1 The prosecutrix inter alia in her cross examination deposed that her father is a hale and healthy person and is very much able to walk. She did not know Sanjay @ Sanju though she had got registered an FIR against him. She admitted her statements Ex.D-1 to Ex.D-3 suffered by her during the course of trial against Sanjay @ Sanju. She also 7 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -8- proved statement of her mother and brother-in-law suffered during trial against Sanjay @ Sanju before the Court as Ex.D- 5 and Ex.D-6. She stayed at Jyotisar with Shubham for 3 days and thereafter returned to her home at her free will. She had no talks with her parents during her stay of 2/3 days with Shubham at Jyotisar. Her father did not join her in pursuing this case. She although moved a complaint against Vijay (nurse) yet she did not insist the police to initiate action against nurse. They did not move any complaint against Shubham. She denied that matter had been compromised with Shubham or she had crossed age of 18 years on the date of commission of alleged offence.
9.2 Dr. Mala (PW-9) in her cross examination disclosed that as per characteristics mentioned in the MLR, possibility of the prosecutrix being habitual to intercourse cannot be ruled out.
9.3 Meenakshi Arora (PW-2) during her cross- examination deposed that date of birth of the prosecutrix had been entered in the school record on the basis of her date of birth reflected in the school leaving certificate issued to her by Government Primary School, Kunjpura, where she had been earlier carrying out her studies.
10. From the perusal of statement of prosecutrix recorded under Sections 161 & 164 of Cr.P.C and evidence 8 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -9- recorded at different points of time, it comes out that she lodged FIR No.76 dated 08.04.2013 against Sanjay @ Sanju. She tendered her statement under Sections 161 & 164 Cr.P.C. wherein, she made specific allegations against Sanjay @ Sanju, however, during the course of trial, she completely resiled from her statements recorded under Sections 161 & 164 Cr.P.C. She denied that Sanjay @ Sanju outraged her modesty or broke string of her salwar. Sanjay @ Sanju was acquitted vide judgment dated 01.08.2013 delivered by learned Additional Sessions Judge, Karnal.
In her statement dated 09.04.2015 before the Police Authorities, she stated that she stayed with Shubham as husband-wife on 22.03.2015 at Jyotisar and came back next day to Kunjpura. In her statement dated 10.04.2015 tendered before the JMIC Karnal, under Section 164 Cr.P.C, she deposed that Shubham did not commit any wrong act with her and Malu forcibly committed wrong act upon her on 22.03.2015. Malu took her away in an empty plot and committed wrong act. Jeet committed wrong act upon her at her residence about 10 days back. In her cross-examination in FIR No.76 dated 08.04.2013, prosecutrix resiled from her allegations against Sanjay @ Sanju and in the trial of present FIR, she deposed that Shubham, Jeet and Malu raped upon her. There are following stark contradictions between 9 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -10- statements tendered under Sections 161 & 164 Cr.P.C. and deposition made before learned trial court:
(i) As per statement under Section 161 Cr.P.C., she stayed with Shubham on 22.03.2015 as his wife at the residence of maternal uncle of Shubham. The next day she came back to Kunjpura. As per statement dated 10.04.2015 tendered under Section 164 Cr.P.C., Malu committed rape upon her on 22.03.2015. Before trial court she deposed that she stayed with Shubham at Jyotisar for 3 days. It shows that prosecutrix was not sure about the number of days she stayed with Shubham and the date on which she came back from Jyotisar to her home and the date on which Malu committed rape upon her.
(ii) As per statement under Section 161 Cr.P.C, there was darkness in the street and Malu forcibly committed rape upon her. As per statement dated 10.04.2015 under Section 164 Cr.P.C., Malu forcibly took away her to an empty plot and committed wrong act. As per deposition before learned Trial Court, Malu took away her to an old house where he forcibly committed rape. As per statement dated 09.04.2015, the rape was committed in street and there was darkness in the street.
There is nothing in statement under Section 164 Cr.P.C about darkness in the street and rape was committed in an empty plot. As per deposition before learned Trial Court, the rape was 10 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -11- committed in an old house and there is nothing about darkness. It is pertinent to mention here that prosecutrix was staying in Kunjpura where she was subjected to alleged rape and alleged rapist was known to her.
(iii) As per statement under Section 161 Cr.P.C, Jeet committed rape about 10 days prior to her leaving home on 22.03.2015. As per deposition before learned Trial Court, she stayed with Shubham for 3 days and she had left home on 22.03.2015 means she came back on 25.03.2015. As per statement under Section 164 Cr.P.C, Jeet committed rape 10 days prior to date of commission of rape by Malu.
(iv) As per statement of prosecutrix and her mother, the prosecutrix are 5 siblings and elder sister of prosecutrix is married. It means prosecutrix and her 3 siblings as well as parents were staying in the same house. It seems difficult to believe that prosecutrix was alone when Sanjay @ Sanju attempted to commit rape and situation was same when Jeet came to her home. She did not disclose fact of commission of rape by Jeet to her siblings or parents even though she was having past experience of rape, how to put criminal law into motion and criminal proceedings before trial court.
11. From the perusal of complaint lodged with police for registration of FIR No.74 dated 09.04.2015 and contents of FIR No.76 dated 08.04.2013, it transpires that appellant 11 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -12- alongwith her daughter put criminal law into motion against Sanjay @ Sanju and opted to resile from the prosecution version. It was very convenient for her to make allegation against a young boy and thereafter turn out to be hostile. There are following contradictions and infirmities in her statement made before police under Sections 161 Cr.P.C and deposition before learned Trial Court which make her oral testimony unbelievable:
(i) As per her complaint (Ex.P-4) lodged with police, Shubham S/o Vinod enticed her daughter with false promise of marriage and eloped with her. He committed rape upon her daughter and threatened to kill her. As per deposition before the learned Trial Court, she did not move application against Shubham when her daughter came back. She denied the fact of recording of her statement by police and even she denied the factum of lodging of complaint (Ex.P-4).
(ii) As per complaint (Ex.P-4) Shubham abducted her daughter 10 days back. The complaint was filed on 09.04.2015 means Shubham abducted her daughter on 30-
31stMarch, 2015. As per deposition before learned Trial Court, she was not aware on which date Shubham abducted her daughter. As per prosecutrix, she stayed with Shubham on 22.03.2015. There is difference of more than one week qua 12 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -13- abduction by Shubham in the statements of both the witnesses.
(iii) As per prosecutrix, she remained with Shubham for 3 days and thereafter came back to her home. Firstly, there is contraction between the days of stay in the different statements of prosecutrix and further appellant had deposed that her daughter remained with Shubham for 2 days. It shows that prosecutrix and her mother are unsure about days for which prosecutrix stayed with Shubham.
12. Meenakshi Arora (PW-2) Lecturer in Govt. High School, Kunjpura in her cross examination confirmed that date of birth mentioned in their school record is based upon date of birth reflected in school leaving certificate issued by Government Primary school, Kunjpura. There was no other independent and primary evidence to ascertain age of the prosecutrix.
13. As per cross examination of Dr. Mala (PW-9), there was possibility of prosecutrix being habitual to the intercourse. The examination of the doctor was not confirming rape by any one of the respondents. As per MLR and affidavit of the doctor, the prosecutrix was fairly mature, hymen was ruptured and the victim apparently seemed to be used to sexual intercourse. No struggle marks of injury, bleeding, bruises were found on Labia-majora or Labia minora. Pubic hair in small amount were found. As per 13 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -14- statement of the prosecutrix recorded under Section 164 Cr.P.C, the prosecutrix at her will left for Kurukshetra and stayed 3 days with Shubham as his wife. Ld. Magistrate did not record her statement on 9.4.2011 as she was found surrounded by her mother and police. She was sent to Nari Neketan and thereafter her statement was recorded on 10.4.2011. The prosecutrix though stayed with Shubham as wife for three days still disclosed that Shubham did nothing wrong with her. She was not ready to stay with her parent. These facts collectively indicate that prosecutrix was quite mature and competent to understand right and wrong.
14. From the perusal of record, the findings recorded by learned Trial Court, it comes out that appellant and prosecutrix on 08.04.2013 lodged an FIR against Sanjay @ Sanju alleging commission of rape. The appellant and prosecutrix resiled from their statements and learned Trial Court had no option except to acquit Sanjay @ Sanju. The prosecutrix bluntly denied commission of rape by Sanjay @ Sanju. In the cross examination held in the present case, the prosecutrix even denied the factum of knowing of Sanjay @ Sanju. The lodging of FIR, recording of statement under Section 164 Cr.P.C. and thereafter resiling from every allegation indicates nature, conduct and character of appellant as well prosecutrix.
14 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -15-
15. The appellant lodged complaint against Shubham and present respondents. The prosecutrix in her statement under Section 161 Cr.P.C. as well Section 164 Cr.P.C. did not implicate Shubham and police did not file challan against Shubham. There was specific allegation against Shubham of abduction and rape. However, appellant and prosecutrix did not pursue their grievance against Shubham inspite of the fact that police had not filed its report against Shubham. The prosecutrix in her deposition before learned Trial Court categorically stated that Shubham had also raped her. In her statements under Sections 161 & 164 Cr.P.C, she had disclosed that she had gone to Jyotisar at her own will and stayed at residence of maternal uncle of Shubham as wife of Shubham. During trial, she alleged that Shubham had committed rape whereas in her statements under Sections 161 & 164 Cr.P.C, her stand was altogether different qua Shubham and she did not initiate proceedings against Shubham. The police did not file its report under Section 173 Cr.P.C against Shubham even though Shubham was named in the FIR. The appellant and prosecutrix had number of opportunities to pursue their remedies against Shubham. There were specific allegations against Shubham that he had abducted and raped the prosecutrix. There is nothing on record which compelled appellant and prosecutrix to abstain from pursuing their remedies against Shubham. There were 15 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -16- allegations of abduction punishable under Sections 363 & 366 IPC. The allegation of abduction was made out against Shubham and there was no allegation of abduction against present respondents still trial proceeded against both of them under Sections 363 & 366 IPC besides under Section 4 of POCSO Act. Non-pursuing of legal action against Shubham even though there was FIR against Shubham and prosecutrix during trial had alleged that she was raped by Shubham, further indicates nature, character and antecedents of appellant and prosecutrix.
16. From the cross examination of prosecutrix and appellant, it is quite evident there is stark contradiction in their statements. There is not only contradiction between statement of appellant and prosecutrix but also there is contradiction in different statements of prosecutrix herself. As discussed in Para 10 & 11, there are so many contradictions in different statements of prosecutrix and appellant as well as there are contradictions in the different statements of prosecutrix. It is settled proposition of law that oral testimony of prosecutrix cannot be disbelieved just because there are minor contradictions. It is further axiomatic that statement of prosecutrix cannot be ignored and her sole oral testimony can form foundation of conviction provided she can be categorized as a person of sterling quality. However, nobody can be 16 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -17- punished just because there is a statement of a lady who is habitual of making allegations of rape and settling her grouse out of Court which entails wastage of valuable time of Government agencies as well Courts. The oral testimony must be believable whereas in the present case record is suggesting otherwise. The contradictions in the oral testimony as noticed in Para 10-11 as well as by learned Trial Court in its findings are not minor whereas there is substantial dichotomy between different statements of prosecutrix qua her period of stay with Shubham (1,2 or 3 days), date of commission of rape by Malu, date of commission of rape by Jeet, place of commission of rape by Malu. The Court cannot ignore contradictions especially when contradictions are stark, substantial and directly causing dent upon the oral testimony. In view of previous conduct of prosecutrix and her mother as well as material contradictions in the different statements of prosecutrix and her mother, the allegations of appellant are unbelievable and there are no reasons to disturb findings recorded by learned Trial Court.
Age of Prosecutrix:
17. Ld. Counsel before this court, as also contended before trial court, contended that prosecutrix was minor at the time of commission of alleged offence of rape, thus, consent of the prosecutrix was immaterial. Ld. Trial Court has held that 17 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -18- prosecution has failed to prove commission of an offence of rape. Trial court has also turned down contention of the prosecution qua age on the ground that prosecution has failed to prove that prosecutrix was minor at the time of commission of alleged offence.
17.A The Trial Court found that the reliance upon the certificate Ex.P2/A, wherein the date of birth was depicted as 11.09.1999 as given by the incharge of the Government Girls High School, Kunjpura could not be relied upon as there was no document to suggest that the date of birth was 11.09.1999 as held out by the prosecution. The transfer certificate showing the said date was held to have no evidentiary value, on account of the fact that the person who had made the entry or who had given the date of birth was not examined. It was noticed that the certificate was proved by PW-2, but there was nothing to show that on what basis the age was recorded in the school and neither there was any person examined who made the entry and stated that who had given the date of birth. Reliance was placed upon the judgment of the Apex Court in Alamualia and another Vs. State represented by Inspector of Police, AIR 2011 715 and the Division Bench judgment of this Court in Jaipal Singh Vs. State of Haryana, 2003 (2) RCR (Criminal) 310, apart from other judgments. It was also noticed that the mother of the victim who had been examined as PW-3 had also not referred to any document 18 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -19- regarding the date of birth, though she stated that her daughter was only 16 ½ years old. The Trial Court noticed that the father of the victim Inderjit Singh had not been examined and had been withheld, though he was keeping well and was in a position to come to the Court. Resultantly while keeping in mind the medical report and the fact that there was no mark of injury on the person of the victim, it was held that she was not a child at the relevant time.
17.B We have gone through Ex.P2 and Ex.P2/A the endorsement made by the police officials, whereby the signatures of the witness was taken, wherein it has been mentioned that as per the school record her date of birth is 11.09.1999. The evidence as such would also go on to show that there was no external mark on the body or in the form of visible mark or bruises or any bleeding. The fact remains that the victim apparently seemed to be used to sexual intercourse on account of physical examination which had been conducted by the said witness. It was further confirmed in the cross- examination, wherein it was admitted that as per the characteristics mentioned the possibility of her being habitual of sexual intercourse could not be ruled out. Similar is the statement of school employee PW-2 which would go on to show that nothing was deposed as to whether the entry was made by the said employee and the student was ever taught by the said employee. The mother of the victim also in her statement 19 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -20- has not deposed anything regarding the factum of the entry of the date of birth being incorporated at her instance. As noticed the victim also admitted that her father was healthy and the fact remains that he was withheld. Rather in cross- examination it has come on record that he never joined her or her mother in both the cases at any stage nor he deposed as a witness. In such circumstances, benefit of doubt was correctly awarded in favour of the respondent-accused by the Trial Court. Thus, it can be safely said that the prosecution has failed to even prove the fact that the victim was below the age of 18 years.
Delay in FIR
18. We find that there is delay in registration of FIR. Hon'ble Supreme Court time and again has elucidated that delay in registration of FIR is not fatal in every case. Trial Court is supposed to look into facts and circumstances which delayed registration of FIR. If the reasons explained for delay are cogent, delay can be ignored and prosecution story cannot be brushed aside simply on the ground that there is delay in registration of FIR.
In the preceding paragraphs, we have noticed that there is contradiction in the statements of prosecutrix and mother of the prosecutrix, however, for the purpose of determination of question of delay in lodging FIR, the dates 20 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -21- disclosed by prosecutrix are noticed and hereby considered.
In the present case, the prosecutrix as per FIR was abducted by Shubham on 22nd March, 2015 and she was raped by Jeet 10 days earlier to her abduction means on or around 12th March, 2015. She came back from Kurukshetra on 25th March, 2015. Malu committed rape on 25th March, 2015. The prosecutrix came back from Kurukshetra on 25th March, 2015 and for all purposes this is the last date of commission of offence by all the accused. The mother of the prosecutrix lodged FIR on 9th April, 2015. It was not their first FIR. They lodged first FIR in 2013 which was founded on identical set of allegations. The FIR culminated into arrest of Sanjay @ Sanju and complete trial was conducted. Thus, prosecutrix and her mother were not unknown to criminal law especially crime of rape. Therefore, appellant and her daughter cannot claim that due to lack of knowledge or loss of reputation, they did not approach police. They are so known to criminal law that they lodged complaint against nurse Vijay though they did not pursue. In the case of rape, the medical evidence is a substantial piece of evidence. It cannot be expected that a prosecutrix would not take bath or wash her clothes for a couple of days.Therefore, we find that there was unexplained delay in filing FIR which was fatal to the case of prosecution.
21 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -22- Presumption of Innocence:
19. The Hon'ble Supreme Court has repeatedly held that the benefit of doubt has to ensue to the accused and if two views are possible, the benefit of doubt must be granted to accused. It has been further held that if two views are possible, the order of acquittal should not be set aside by High Court because there is double presumption of innocence.
20. On the question of innocence before appellate court, in Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124, the Hon'ble Supreme Court has held:
14. Taking the first question for consideration, we are of the view that in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken. It has been recognized as a human right by this Court.
In Narendra Singh v. State of M.P. [Narendra Singh v. State of M.P., (2004) 10 SCC 699, this Court has recognised presumption of innocence as a human right and has gone on to say that: (SCC pp. 708 & 709, paras 30-31 & 33) "30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between 'may be' and 'must be'.
31. It is also well known that even in a case where a plea of alibi is raised, the burden of proof remains on the prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher court (see Dhanna v. State of M.P. [Dhanna v. State of M.P., (1996) 10 SCC 79 : 1996 SCC (Cri) 1192], Mahabir Singh v. State of Haryana [Mahabir Singh v. State of Haryana, (2001) 7 SCC 148 : 2001 SCC (Cri) 1262] and Shailendra Pratap v. State of U.P. [Shailendra Pratap v. State 22 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -23- of U.P., (2003) 1 SCC 761 : 2003 SCC (Cri) 432] ), which had not been adhered to by the High Court.
***
33. We, thus, having regard to the post-mortem report, are of the opinion that the cause of death of Bimlabai although is shrouded in mystery but benefit thereof must go to the appellants as in the event of there being two possible views, the one supporting the accused should be upheld."
15. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram [State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, wherein this Court observed thus: (SCC pp. 186-87, para 7) "7. ... Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P. [Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC (Cri) 736] ) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of the appellant-accused stands good. The Additional Sessions Judge was right in granting him benefit of doubt. The view which favours the 23 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -24- appellant-accused has to be considered and we discard the opposite view which indicates his guilt.
The Apex Court in para 39 in Dhanapal v. State By Public Prosecutor, Madras, (2009) 10 SCC 401 while dealing with scope of interference at appellate stage has held:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."
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21. As noted above, there is always presumption of innocence and in case of acquittal, there is double presumption. The burden lies upon prosecution to prove the guilt of accused beyond reasonable doubt. The learned trial Court has passed a detailed, reasoned and speaking order and we find no infirmity in the said order. There is no manifest error, illegality or non-application of mind or non-appreciation of evidence which could compel us to form an opinion different from the opinion formed by the learned Trial Court. Finding no merit in the present appeal, we are of the considered opinion that leave to appeal deserves to be declined and accordingly application seeking leave to appeal as well as appeal is dismissed.
22. We would hasten to add that legislature with intent to protect women from cruelty, which may be in any form, has enacted various legislations including amendments in IPC. Rape not only physically tortures a woman but also it mentally, socially and publically affects an aggrieved woman as well as entire family. In the case of an unmarried girl, it seriously affects her future marriage prospects and in case of a married woman, it seriously affects her married life. The loss of reputation and humiliation faced by male members leaving affected lady is well known. The person who is charged of commission of an offence of rape loses his reputation public at large as well as among family members. Thus, offence of rape 25 of 26 ::: Downloaded on - 24-12-2022 21:02:50 ::: CRM-A-410-MA-2017 -26- is not a normal offence but it is a very serious offence in a country where society is closely knitted and rape is seriously viewed by all sections of the society. It is a known fact that every year a quite number of ladies are victimized. Government and courts are taking seriously issue of crime against women. We have noticed in many cases like present case wherein few ladies are trying to mis-use protection of law granted to women. It creates bad impression in the mind of people who are investigating or adjudicating these crimes. Resultantly, agony and grievances of ladies who are actually suffering and have been victimized is either properly not addressed or it is multiplied.
(G.S.SANDHAWALIA) (JAGMOHAN BANSAL)
JUDGE JUDGE
04.11.2022
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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