Punjab-Haryana High Court
Renu Sharma Alias Nimmi Devi vs State Of U.T on 27 February, 2013
Bench: Jasbir Singh, Inderjit Singh
In the High Court of Punjab and Haryana, at Chandigarh
Criminal Misc. No. A-999-MA of 2012 (O&M)
Date of Decision: 27.2.2013
Renu Sharma alias Nimmi Devi
... Applicant
Versus
State of U.T., Chandigarh and Others
... Respondents
CORAM: Hon'ble Mr. Justice Jasbir Singh.
Hon'ble Mr. Justice Inderjit Singh Present: Mr. Kunal Chhoker, Advocate for the applicant.
Jasbir Singh, Judge Applicant/complainant has filed this application under Section 378(4) Cr.P.C. seeking leave to file an appeal against the judgment dated 25.11.2011 acquitting respondents No.2 and 3 of the charges framed against them. The above respondents are the police officials. It was an allegation against them that they have committed sexual assault upon the applicant against her consent between the years.
The process of law was started on a complaint (Ex.PJ) made by her to the police, whereupon an enquiry was conducted, which resulted into registration of an FIR bearing No. 230 dated 26.6.2007, Police Station Sector 39, Chandigarh against respondents No.2 & 3, for commission of an offence under Section 376/34 IPC.
The Investigating Officer Inspector Gulshan Kumar (PW.12) recorded statement (Ex.PF) of the applicant under Section 161 Cr.P.C. Criminal Misc. No. A-999-MA of 2012 (O&M) 2 Statement (Ex.PH) of the prosecutrix was also got recorded under Section 164 Cr.P.C. before a Magistrate.
The trial Judge has noted the following facts from statement made by the applicant/complainant:-
"Prosecutrix, made statement to the effect that she was resident of House No. 1264-A, Sector 39-B, Chandigarh and her husband was working as driver in Haryana Roadways. She had three children, two sons and a daughter. In 1998, a case was registered against her, her husband and two tenants Ashwani Kumar and Vicky on complaint of Ms. Kusum Sharma, in Police Station Civil Lines, Hissar in which she was released on anticipatory bail. During investigation, the case was found false. Thereafter, on reinvestigation, the case was found false. Therefore, on orders of Hon'ble Punjab and Haryana High Court, investigation of the case was entrusted to CBI. Inspector Subhash Kundu and C. Mohinder Singh came to Hissar on 20/21.10.2001 to investigate the case on behalf of CBI. They both visited her house and made enquiries, during the course of which they informed that they were staying in Hissar Rest House and would call her there for interrogation. The same night C. Mohinder Singh telephonically informed her that Inspector Subhash Kundu was calling her to Rest House, whereupon, she reached the Rest House alone, enquired about his room number from reception and went to the room. Both of them interrogated her Criminal Misc. No. A-999-MA of 2012 (O&M) 3 and she disclosed the entire story relating to the case. They were both under the influence of liquor. Subhsh Kundu told her that there was nothing in the case, yet, she would have to shell out "Chamri and Damri". She then told him that she had no money to pay as she was involved in litigation for the last three years. Thereupon, they told her that she should arrange a girl for them and when she refused, they forced her for sexual favours threatening that if she did not comply, she and her husband would be sent behind bars for 10 years. Subhash Kundu and Mohinder Singh compelled her for sexual intercourse and after 2-2½ hours, left her. Thereafter, till 23.01.2002, they did not use her. On 23.01.2002, Subhash Kundu was staying alone in the Rest House where he called her alone at night, had sexual intercourse with her and after about one hour, sent her back. After about one month, Subhash Kundu called her on her landline phone and asked her to come to Delhi as a Senior Officer wanted to meet her. They had conversation the entire night. He told her to reach Delhi by bus and that he would pick her up from Bus stand for the meeting with senior officer. She went to Delhi But Stand from where Subhash Kundu took her to a Rest House in a jeep where he had sexual intercourse with her and after 2½ hours, left her saying that the senior officer was not available and she would have to come again. Thereafter he called her to CFSL, Sector 36, Chandigarh for lie detector test and Criminal Misc. No. A-999-MA of 2012 (O&M) 4 threatened to spoil the case if she disclosed the matter to anyone. Out of fear, she remained silent. In the year 2002, after her case was filed, Subhash Kundu did not contact her again.
2. Prosecutrix further stated that in the year 2005 when she was residing in House No. 1264-A, Sector 39-B, Chandigarh Mohinder Singh came to condole the death of her mother-in-law and threatened to disclose to her husband, her relations with Subhash Kundu if she refused to have relations with him. He also threatened to involve her husband in false cases and started calling her out on phone. On 3-4 occasions, Mohinder Singh took her to a "Sarai" in Sector 24, Chandigarh on his motorcycle where he got a room booked and had intercourse with her. On one occasion Mohinder Singh called her at Police Post, Sector 24, Chandigarh and had sexual intercourse on the first floor of the office. 2-3 times, he called her to the house of a lady in Sector 45. After her daughter's marriage on 02.10.2006, Mohinder Singh frequently started visiting her house and had intercourse with her. Every time, he used to threaten to ruin her if she disclosed the matter. When she could bear no longer, she moved the application before SSP, Chandigarh."
The Investigating Officer got the applicant medicolegally examined through Dr. Neena (PW.2). Thereafter, he recorded statements of the witnesses. During investigation, the applicant was again got Criminal Misc. No. A-999-MA of 2012 (O&M) 5 medicolegally reexamined through Dr. Usha Bansal (PW.13). During investigation, the respondents/accused were arrested. On completion of investigation, final report was put in Court. Copies of the documents were supplied to the respondents/accused, as per norms. Vide order dated 5.7.2008, case was committed to the competent Court for trial. The respondents/accused were charge sheeted on 16.10.2008 for commission of offences under Sections 376 and 120-B IPC. Thereafter, vide order dated 19.8.2010, charge was re-framed for commission of offences under Sections 376(2)(g) and 376 read with Section 120-B IPC. The respondents/accused pleaded not guilty and claimed trial.
The prosecution produced 13 witnesses and also brought on record documentary evidence, to prove its case. On conclusion of the prosecution evidence, statements of both the respondents/accused were recorded under Section 313 Cr.P.C. Incriminating evidence, appearing on record, was put to them which they denied, claimed innocence and pleaded false implication. They also led evidence in defence.
The trial Judge, on appraisal of evidence, found case of the prosecution doubtful, benefit of which was given to the respondents/accused by ordering their acquittal. Hence, this application.
The case of prosecution, to convict the respondents/accused, is solely based upon statement made by the applicant/complainant. Counsel for the applicant has vehemently contended that the trial Judge has wrongly discarded her statement by making reference to some contradictions here and there.
After hearing counsel for the applicant and going through the Criminal Misc. No. A-999-MA of 2012 (O&M) 6 paper-book, we are not inclined to interfere in the judgment under challenge.
The process of law was initiated on a statement (Ex.PJ) made by the applicant. The trial Court noted that in her subsequent statements Ex.PF & Ex.PH, the applicant has improved her version to a greater extent. As per the applicant/complainant, first sexual harassment to her was made in the year 2001 and thereafter it continued to be repeated till such time she made a complaint against the respondents in the year 2007. The delay in reporting the matter to the police was rightly taken against case of the prosecution. It was case of the applicant/complainant that on telephone she was called to visit many places, however, during trial, no attempt was made to put on record the call details. It was further case of the prosecution that respondents No.2 and 3 were the Investigating Officers in a complaint against the applicant which was pending enquiry. In that case, sexual assault was committed upon her. It is on record that the said complaint was filed in the year 2002. Thereafter, the applicant was not under threat not to disclosed the crime committed against her by the respondents/accused. The trial Judge has rightly come to a conclusion that the prosecution has failed to explain delay in reporting the matter. In that regard, it was observed as under:-
"25. The story as narrated by the prosecutrix dates back to the year 2001 when one Kusum Sharma got a criminal case registered against her and her husband and others, the investigation of which was entrusted to the CBI. The first incident of gang rape is alleged to have occurred in the night Criminal Misc. No. A-999-MA of 2012 (O&M) 7 of 20/21/10.2001, second on 23.01.2002 in Hissar by Subhash Kundu alone, the third after one and half month by Subhash Kundu in Delhi and thereafter by accused Mohinder w.e.f. 2005 to 2007. The matter was not reported to the police immediately and there is a delay of more than 6½ years in lodging the FIR. Delay in lodging reports of sexual offences is usually not considered fatal if the same is properly explained. This general principle, however, cannot be applied to the facts of the present case considering the fact that the prosecutrix is a mature, married lady, mother of three grown up children well aware of her legal rights, having lodged several criminal cases against various persons, record of which has been brought on file. Her explanation that the matter was not reported immediately as the accused threatened to spoil her case appears to be a lame pretext, not worthy of credence. It is in her own statement that accused Subhash Kundu did not bother her after the criminal case was filed in 2002. If that be so, she could have reported the matter immediately after filing of the case in 2002 but never did so. It is difficult to accept the story that for two years w.e.f. 2005 to 2007 accused Mohinder took her out to various places and also visited her house to commit rape under threat. The delay which remains unexplained seriously affects the edifice of the prosecution case and makes a serious dent in it. Courts have insisted on prompt reporting of offences as a prompt FIR affords a Criminal Misc. No. A-999-MA of 2012 (O&M) 8 guarantee of its truthfulness. Whenever reports to the police are delayed, danger creeps in of introduction of coloured version, false roping in of persons and false implications. The delay of 6½ years in reporting the matter to the police, particularly in the wake of improvements made by the prosecutrix over her first version Ex.PJ, shake the very foundation of the case."
The trial Judge has also noticed that an attempt was made by the prosecution to conceal the first complaint (Ex.PJ) made by the prosecutrix. That document was brought on record when question in that regard was put by the defence counsel. In paragraphs No.27 to 31 of the judgment, under challenge, the trial Court has discussed each incident of sexual assault, as alleged by the prosecutrix and then negative her statement by giving valid reasons. On some of the given dates, the respondents/accused were present at difference places and were not available at the places given by the applicant/complainant. It has also come on record that the applicant/complainant is a chronic litigant. She has got lodged criminal cases against many persons and she is also in the habit of resiling from her statement when occasion arises. In that regard, it was noted as under by the trial Court:-
"33. Prosecutrix admitted in cross examination that she lodged FIR No. 445/2000 Police Station City, Hissar under Sections 354, 452, 34 IPC against Vinod Kumar and others. Certified copy thereof has been placed on record as Ex.DX/1. She also admitted that she had compromised with Vinod Criminal Misc. No. A-999-MA of 2012 (O&M) 9 Kumar and others in that case as a result of which they were acquitted. Ex.DX/5 is the certified copy of her statement made in the Court in that case fully supporting the prosecution case after which application under Section 319 Cr.P.C. was moved and lateron, when the prosecutrix appeared again on 14.07.2006 she declined to identify the accused. Ex.DX/6 is the certified copy of statement of her sister, an eye witness who also resiled from the prosecution case as a result whereof, case ended in acquittal of the accused vide Ex.DX/7. Prosecutrix also admitted that she got registered FIR No. 266 dated 10.06.2001 under Section 294 IPC against Vijay Dhamija, copy of the FIR is Mark-DA. The case was cancelled by the police vide Mark-DB as the allegations were found false and the character of prosecutrix was found suspicious. The cancellation report was accepted by learned CJM, Hissar on 05.03.2005 vide Mark-DC. Ex.DX/8 is the copy of another FIR No. 715/2002 under Sections 452, 307, 34 IPC got registered by prosecutrix against certain persons on the allegations that they tried to kill her by pouring kerosene oil. The accused in that case were acquitted by the court of Ld. Additional Sessions Judge vide judgment Ex.DX/11 as prosecutrix failed to identify the culprits. Prosecutrix admitted in cross-examination that on account of compromise with accused in that case, they were acquitted. Mark-DD is copy of another FIR No. 323 under Sections 148, Criminal Misc. No. A-999-MA of 2012 (O&M) 10 149, 323, 452, 506 IPC got registered by prosecutrix against Raju and others. Vide Ex.DX/12 prosecutrix launched a complaint under Sections 354, 342, 506 IPC alleging that SHO, Police Station City, Hissar grabbed her chest, kissed her and outraged her modesty. Ex.DX/15 is the enquiry report of District Inspector, Hissar reporting that prosecutrix was of dubious character, involved in immoral activities with anti- social youths and her complaint was false. Ex.DX/17 is copy of another complaint instituted by the prosecutrix against Bimla Devi Inspector, C. Hukam Singh etc. under Sections 323, 342, 376, 506, 511 IPC levelling allegations of rape against C.Hukam Singh and Ex.DX/20 is the copy of order of JMIC, Hissar, in that case which records that the complainant (prosecutrix) did not want to pursue her complaint and had closed pre-charge evidence on account of which the accused were discharged. Mark-DG, Mrak-DH, Mark-DK, Mark-DL, Mark-DM, Mark-DM, Mark-DO, Mark-DP are some other documents brought on record to show past conduct of the prosecutrix.
34. The documents brought on record by the accused take away the probative force of the story, told as it is by a woman with no scruples. In the circumstances, it is difficult to believe a woman of such character when she says that the accused had sexual intercourse with her and committed gang rape 6½ years ago. The character and conduct of the Criminal Misc. No. A-999-MA of 2012 (O&M) 11 prosecutrix is illustrated from the documents brought on record, most of which relate to serious cases of sexual assault wherein, the matter ended when the prosecutrix resiled from her own story. The evidence of the prosecutrix fails to pass the test of judicial scrutiny. It is plain from the record that the story of gang rape and of subsequent narrations of incidents of rape are unbelievable. In view of the blatant infirmities in the un-corroborated statement of prosecutrix, it is difficult to accept the prosecution version.
35. When the prosecutrix is liable to be disbelieved, the court need not go into the question whether it was a case of consent as no reliance can be placed on her evidence which is highly untrustworthy."
It was noticed by the trial Court that in almost all the criminal cases initiated by the applicant/complainant, her version was found to be false. In some cases, she did not support the prosecution case. This Court feels that the view taken by the trial Court is perfectly justified and is as per evidence on record. The statement of the applicant was rightly disbelieved after giving elaborate reasons.
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 Criminal Misc. No. A-999-MA of 2012 (O&M) 12 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 & 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 Criminal Misc. No. A-999-MA of 2012 (O&M) 13 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 and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise Criminal Misc. No. A-999-MA of 2012 (O&M) 14 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."
Counsel for the applicant has failed to indicate any error in passing the judgment on the part of the trial Court which may necessitate interference by this Court.
Criminal Misc. No. A-999-MA of 2012 (O&M) 15
This application is also barred by 320 days in filing an application seeking leave to file a appeal. No ground is made out to condone the delay in filing the application as well.
Hence, both the applications viz. Criminal Misc. No. A-999-MA of 2012 and Criminal Misc. No. 74853 of 2012 are dismissed.
(Jasbir Singh) Judge (Inderjit Singh) Judge February 27, 2013 "DK"