Himachal Pradesh High Court
State Of Himachal Pradesh vs Vinod Kumar on 10 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.M.P(M) No. 1514 of 2022 .
Reserved on: 30.11.2022
Decided on: 10th January, 2023
State of Himachal Pradesh .......Applicant/appellant
Versus
Vinod Kumar ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the applicant: Mr. Rajinder Dogra, Sr. Addl. A.G
with Mr. Vinod Thakur and Mr. Shiv
Pal Manhans, Addl. A.G and Mr.
J.S. Guleria, Dy. A.G.
For the respondent: Nemo.
Virender Singh, Judge
By way of present application, the applicant-State has sought the permission to assail the judgment of acquittal dated 01.04.2022 passed by the learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. (hereinafter referred to as the 'learned trial Court') in Sessions Trial No. 29/21/14.
2. By way of judgment of acquittal, the learned trial Court has acquitted the respondent (hereinafter referred to as 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/01/2023 20:34:23 :::CIS 2the 'accused') for the offence punishable under Sections 451, .
354, 354A & 376 of the Indian Penal Code.
3. The requisite leave to appeal has been sought on the grounds that the applicant is having a good and arguable case and there is every possibility that the appeal filed by the State will be accepted by this Court. The judgment of acquittal is also stated to be against the law and facts on record and the same has been passed by the learned Additional Sessions Judge on surmises and conjectures.
4. On all these submissions, a prayer has been made to allow the application, by granting leave to appeal against the judgment of acquittal.
5. Record has been perused.
6. The prosecution story, as divulged from the record, is that on 28.01.2018 at about 7.00 p.m. in village Kango-ka-
Galu, Tehsil Sarkaghat, the accused allegedly committed the house trespass and requested the prosecutrix to remove her clothes. He kissed her. When the prosecutrix refused to dance on the tunes of the accused, then he i.e. accused had left the spot. The prosecutrix, thereafter, reported the matter to the police. On 29.01.2018, the prosecutrix, made another ::: Downloaded on - 10/01/2023 20:34:23 :::CIS 3 application alleging rape against accused. After the .
completion of the investigation, the police has filed the charge-
sheet against the accused for the commission of offence punishable under Section 376, 451, 354 and 354A IPC. On the basis of report under Section 173(2) Cr.P.C., the learned trial Court charge-sheeted the accused, accordingly, on 23.06.2018.
7. Thereafter, the prosecution was directed to adduce evidence. Consequently, the prosecution has examined as many as 13 witnesses.
8. The learned trial Court has passed the judgment of acquittal, after concluding that the evidence of PW-1, PW-2 and PW-9 is not confidence inspiring.
9. The prosecutrix, when appeared in the witness box, has deposed that on 27.01.2017 when she was present in her house, then accused came there and offered her Pakoda and toffees. When she had refused to eat those articles and went inside her room, then accused pushed her, removed her salwar and ravished her. Whereas, in the complaint Ext. PW-
2/A, she has disclosed that on 28.01.2018 at about 7.00 p.m. when accused came to her house, at that time, her mother-in-
law was not in the house and the accused had teased her ::: Downloaded on - 10/01/2023 20:34:23 :::CIS 4 and kissed her. The accused allegedly requested/directed the .
prosecutrix to remove her clothes. On the refusal of the prosecutrix, he had left the place.
10. On the basis of above facts, the learned trial Court has held that the statement of the prosecutrix is entirely inconsistent with the report lodged with the police.
Highlighting the fact that the prosecutrix, in her cross-
examination, has admitted that the application Ext.PW-2/C was written in the police station by the police official, as such, the learned trial Court has held that there are material contradictions and the evidence of the prosecutrix has been stated to be unbelievable.
11. Perusal of the statement of prosecutrix recorded under Section 154 Cr.P.C Ext. PW-2/A shows that the prosecutrix had got recorded that on 28.01.2018 at about 7.00 p.m. when she was present in her house, then accused came there and started teasing her. According to her further deposition, accused kissed her and requested her to remove her clothes. At that time, her mother-in-law was not present.
According to the prosecutrix, when she had refused to accept ::: Downloaded on - 10/01/2023 20:34:23 :::CIS 5 his request, then accused left the spot. Thereafter, she had .
disclosed this fact to her husband on phone.
12. Admittedly, no allegation with regard to alleged "ravishment" has been leveled in the statement recorded under Section 154 Cr.P.C. The prosecutrix is not an illiterate as in her opening line of examination-in-chief, she has stated that Government College, Nalagarh.
r to she had completed her 2nd year of graduation from In such a situation, the omission with regard to material facts regarding the alleged ravishment in her statement, recorded under Section 154 Cr.P.C., has rightly been considered by the learned trial Court.
The improved version given by the prosecutrix has rightly been discarded by the learned trial Court.
13. Another fact, which is borne out from the record, is that the alleged incident had taken place on 28.01.2018, whereas, in the deposition on oath, she has disclosed that the incident had happened on 27.01.2017. In such a situation, this Court is of the view that the prosecutrix herself had not approached to the police with true facts and she had changed her version at different stages.
::: Downloaded on - 10/01/2023 20:34:23 :::CIS 614. It is no longer res-integra that the conviction in such .
type of cases can solely be based upon the sole statement of the prosecutrix, if inspires confidence. The term "if inspire confidence" put the Courts on caution that before accepting the sole statement of the prosecutrix, the judicial conscience of the Court must be satisfied that the statement of the
15. to prosecutrix inspires confidence.
As stated above, the prosecutrix is not an illiterate lady and she has changed her version at different stages of the case. In the statement recorded under Section 154 Cr.P.C, she has not leveled allegations against the accused with regard to her alleged ravishment by the accused. Admittedly, the prosecutrix, at that time, was accompanied by her parents. The prosecutrix thereafter moved another application on 29.01.2018 Ext. PW-2/C, alleging the fact that the accused had ravished her on 28.01.2018. The reason for non-disclosure of this material fact has been mentioned in the complaint as under:-
"Last day, I could not mention this fact due to social embrassement."::: Downloaded on - 10/01/2023 20:34:23 :::CIS 7
Whereas, no such fact has been got recorded by .
her in statement recorded, under Section 164 Cr.P.C., Ext. PW-
2/B. The prosecutrix, when appeared in the witness box had changed the date of incident as 27.01.2018, instead of 28.01.2018 and also made a futile attempt to explain the factum of non-mentioning of material fact, regarding her alleged ravishment by the accused, in her statement recorded, under Section 154 Cr.P.C., by stating that her condition, at that time, was not good. From the above reasons, this Court is in full agreement with the findings recorded by the learned trial Court.
16. It is settled proposition of law that where, in an appeal against acquittal, two views are possible, the view taken by the trial Court, is liable to be upheld. It has been held so by the Hon'ble Supreme Court in Allarakha K. Mansuri v.
State of Gujarat, 2002(1) RCR (Criminal) 748.
17. The Hon'ble Supreme Court in Mrinal Das & others v. State of Tripura, (2011) 9 Supreme Court Cases 479, has elaborately discussed the powers of the Court to interfere in the judgment of acquittal. The relevant paras of 13 and 14 of the judgment are reproduced as under:
::: Downloaded on - 10/01/2023 20:34:23 :::CIS 8"13) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, .
interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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 ::: Downloaded on - 10/01/2023 20:34:23 :::CIS 9 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."
18. Judging the facts and circumstances of the present case, in the light of the decision of the Hon'ble Supreme Court in Mrinal Das's case (supra), this Court is of the view that the learned trial Court has taken the view, which is possible one, according to the facts and circumstances of the case. Hence, requisite leave to appeal is liable to be declined.
19. Consequently, no ground for grant of leave to appeal is made out. As such, the application under consideration is dismissed.
Record of trial Court be sent back.
( Tarlok Singh Chauhan )
Judge
January 10 , 2023 ( Virender Singh )
(naveen) Judge
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