Punjab-Haryana High Court
Anita Devi And Another vs Dilshad Ali And Others on 10 January, 2013
Author: Jasbir Singh
Bench: Jasbir Singh, Inderjit Singh
CRM A 353-MA of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM A 353-MA of 2011(O&M)
Date of decision: 10.01.2013
Anita Devi and another
.....Applicants
versus
Dilshad Ali and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Inderjit Singh
Present: Mr.R.K.Handa, Advocate for the applicants
Mr.Kapil Aggarwal, Advocate for respondent No.1
Mr.Sandeep Vermani, Additional Advocate General, Haryana
for respondent No.5
Jasbir Singh, J.
CRM No.25109 of 2011 After hearing counsel for the parties, the application is allowed and delay of 125 days in filing the application seeking leave to file an appeal stands condoned.
CRM A 353-MA of 2011(O&M) Applicants have filed this application under Section 378(4) Cr.P.C. seeking leave to file an appeal against judgment dated 28.8.2010 vide which respondent Nos.1 to 4 were acquitted of the charges framed against them.
On 13.12.2011, this application was not pressed against respondent Nos.2 to 4. Accordingly, qua them it was dismissed.
Respondent Nos.1 to 4 / accused were made to face trial in FIR No.23 dated 12.1.2009 police station City Thanesar for commission of offences under Sections 376, 386, 365, 511, 328, 420, 506, 201, 120B IPC.
Process of law was initiated on a statement made by applicant No.1 namely Anita Devi (PW2). Her statement was recorded by SI Shyam Lal (PW12) on 12.1.2009 in police station, where upon the above FIR was CRM A 353-MA of 2011(O&M) 2 registered. The trial Judge has noted the following facts from the FIR as narrated by Anita Devi-applicant No.1:-
"......that she is residing in Patel Nagar, Kurukshetra and she is resident of Khizrabad in district Yamuna Nagar. She was married with Parveen Kumar at Kurukshetra according to Hindu rites and ceremonies. It has been further alleged that prior to her marriage, she was having friendship with one boy namely Dilshad son of Bhura resident of Khizrabad district Yamuna Nagar, who was residing in the neighbourhood. She came to know later on that Dilshad is a criminal. One day, he took her in a hotel at Yamuna Nagar and after giving threat to her, he committed rape upon her. This fact was not told by her to anybody. He took her to Trilokpur (Kala Amb) and administered some intoxicant and she became unconscious. She has further alleged that with the help of some friend, he took her in a temple and put a "mala" in her neck and took the photographs. After one month, he told her the said fact that she was married with him. A quarrel took place with that boy. She told him that her marriage cannot be performed in the temple with him, he being Muslim. He continued torturing her for two years. Before her marriage on 23/24.11.2008, he threatened her father on telephone not to marry her with other boy and he would perform marriage with her. On giving threat by her father and uncle, he remained silent for some days. It has been further alleged that 3-4 days before the marriage, he CRM A 353-MA of 2011(O&M) 3 gave threat on telephone to her father and also to her that she would be lifted from the "Mandap" of marriage. On the day of marriage, he along with some other persons came in a car and motor cycles in order to lift her, but he could not find any opportunity to do so. After the marriage, he continued giving threat to her on mobile no.9991355827. She prayed that action be taken against the culprit."
The investigating officer recorded statements of the witnesses. He went to the spot, got prepared a rough site plan. Prosecutrix was medico legally examined. During process of investigation, all the accused were arrested. On completing the formalities, final report was put in Court. Copies of the documents were supplied to all the accused as per norms. Case was committed to the competent Court for trial vide order dated 24.4.2009. The accused were charge sheeted on 1.6.2009 to which they pleaded not guilty and claimed trial. Prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, separate statements of all the accused were recorded under Section 313 Cr.P.C. Entire prosecution evidence was put to them. They denied the same, pleaded innocence and false implication. They also led evidence in defence.
It was an allegation of the prosecutrix that in the first week of September 2005, under threat, she was taken to a restaurant at Yamuna Nagar, where against her consent respondent No.1 committed rape upon her. She came back to her house, however, out of fear, she failed to disclose anything to her parents. In the month of December 2005, the prosecutrix CRM A 353-MA of 2011(O&M) 4 along with her younger sister were present in front of her college, both were forcibly asked to sit in a car by respondent No.1. Respondent No.1 served them tea and pakoras, after taking the same, both became unconscious. Thereafter, nothing was known to them. When gained consciousness, they found themselves at bus stand Yamuna Nagar. It appears that when she was unconscious respondent No.1 got clicked some photographs showing that he had married the prosecutrix. Marriage of prosecutrix was solemnized with Parveen Kumar on 7.12.2008. At that time also, a threat was exerted by the accused to abduct her forcibly. It was further case of the prosecution that respondent No.1 had been threatening her on telephone with a view to blackmail her. When threatening calls did not stop, FIR was got lodged with the police. The prosecutrix was medico legally examined by Dr.Anupama Singh (PW3). The trial Judge has analyzed the deposition made by the prosecutrix in a critical manner. Other evidence on record was also looked into a proper manner. After looking into the evidence on record, case of the prosecution was found to be doubtful. It was rightly stated that the statement made by the prosecutrix was not believable. In that regard, the trial Judge has opined as under:-
"15. The testimony of PW-2 Anita, prosecutrix, is not trustworthy, vide which, she has stated that she was administered "bhang pakoras" by the accused and photographs of marriage were taken. Ex.D-20 is the Love letter, which has been written by prosecutrix Anita Devi to accused Dilshad Ali, in which, she has narrated that under the pressure of her parents, she is marrying with another boy, CRM A 353-MA of 2011(O&M) 5 otherwise, her parents will die as they are not happy with her relationship with Dilshad Ali. She has also stated that her mother is also worried about deteriorating health of her father, because of relations of Anita Devi with accused Dilshad Ali. In her cross-examination, PW-2 Anita Devi has admitted that she had written that Love letter Ex.D-20, but she has stated that she has written the contents of that letter under compulsion and force, but it does not seem to be true. There are natural version in the letter Ex.D-20, in which, she has stated that she is marrying with another boy because of compulsion given by her parents. She has given natural version that Dilshad Ali is a good person, but he becomes bad boy when, he gave her beatings, whenever she does not comply to his dictation. At that time, she dislikes Dilshad Ali, but for the remaining time, she loves him in the manner as narrated by her in her love letter Ex.D-20. Further, her love for Dilshad Ali is reflected in the poetical verses, which she written at the end of her letter.
16. Hence, all the oral as well as documentary evidence placed on record along with the photographs Ex.D-1 to Ex.D- 19 and the Love letters Ex.D-20 and Ex.D21 depict that the prosecutrix Anita Devi was a consenting party to the physical relation between her and accused Dilshad Ali. She was a consenting party. She was never abducted nor administered stupefying things to her in tea and "bhang pakora" by the accused with intent to perform marriage with her. She was CRM A 353-MA of 2011(O&M) 6 never threatened by the accused at any point of time nor the accused attempted to abduct her nor the accused dishonestly induced her to perform marriage, prepare fake marriage certificate and photographs of marriage after administering upon her stupefying articles."
It has also come on record that after solemnization of marriage in a temple, both prosecutrix and the accused - respondent No.1 used to stay for hours together in a room of a hotel at Yamuna Nagar. It was so deposed by an employee of the said hotel. It was further stated that they used to hire a room by stating that they need it for study purposes. Photographs clicked at the time of marriage between the prosecutrix and respondent No.1 were also brought on record. So far as exerting threats on telephone to the prosecutrix by respondent No.1 are concerned, no evidence worth the name has been brought on record. Respondents have brought on record history of criminal cases filed by and against the prosecutrix at different times. Above fact shows that the prosecutrix was not a homely typed of a girl who could have been put under threat as alleged by her in her statement.
After hearing counsel for both the parties, we are satisfied that the trial Judge has formed an opinion 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.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775, while dealing with an appeal against CRM A 353-MA of 2011(O&M) 7 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."
Similarly, in the case of State of Rajasthan v. Shera Ram alias CRM A 353-MA of 2011(O&M) 8 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 CRM A 353-MA of 2011(O&M) 9 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."
Counsel for the applicants has failed to show us any misreading of evidence or gross error committed by the trial Court which may necessitate interference by this Court.
Dismissed.
(Jasbir Singh)
Judge
10.01.2013 (Inderjit Singh )
gk Judge