Ku.Kavita Uikey vs State of Chhattisgarh

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Radhakishan Agrawal, J

Heard on admission.

This acquittal appeal filed by the appellant/victim arises out of the judgment dated 15.05.2014 passed by the Court of Special Sessions Judge, Kabirdham (Kawardha), Chhattisgarh, in Special Sessions Case No.10/2014, whereby the learned trial Court acquitted the accused persons/respondent Nos. 2 and 3 of the offences punishable under Sections 341, 354/34 and 506 Part-I of Indian Penal Code (for short,“IPC”)and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act, 1989”) by extending the benefit of doubt.

Case of the prosecution, in brief, is that on 24.09.2013, prosecutrix, aged about 26 years, belonging to a Scheduled Tribe and working as an Assistant Teacher (Panchayat) at Government Primary School, Dindori, lodged a written report (Ex.P/1) at Police Station Pandariya alleging that on 20.09.2013, at about 5:00 PM, while she was returning from her school to her native village Nihalpur and had reached near the village pond, the accused persons/respondent Nos. 2 and 3 wrongfully restrained her with the intention to outrage her modesty, abused her and threatened to kill her. It was further alleged that the accused persons, being members of a non-SC/ST community, insulted and intimidated her on the basis of her caste. On the basis of the said written report (Ex.P/1), FIR (Ex.P/2) was registered against the accused persons.

During the course of investigation, caste certificate of the victim was seized vide Article A-1. Spot map was prepared vide Ex.P/3. The accused persons/respondent Nos. 2 and 3 were taken into custody and the statements of the witnesses were recorded.

After completion of investigation, charge-sheet was filed against the accused persons/respondents No.2 & 3 before the concerned trial Court. Accused persons/respondents No.2 & 3 abjured their guilt and prayed for trial.

After completion of the investigation, the charge-sheet was filed against the accused persons/respondent Nos. 2 and 3 before the concerned trial Court. The accused persons/respondent Nos. 2 and 3 denied the charges, abjured their guilt, and prayed for trial.

Learned counsel for the appellant/victim submits that the trial Court wrongly discarded the testimony of the victim on the basis of minor omissions in the written report (Ex.P/1) and FIR (Ex.P/2). It is contended that the victim’s evidence is natural, reliable and inspires confidence and that such minor omissions are not fatal to the prosecution case. He further submits that the delay of four days in lodging the report has been satisfactorily explained, as the victim first informed her father and thereafter approached the police. He also submits that despite cogent and convincing evidence on record, the trial Court committed an error in acquitting the accused persons/respondent Nos. 2 and 3, therefore, the impugned judgment of acquittal deserves to be set aside and the accused persons be convicted.

Learned counsel for respondent No.1/State, while admitting that no separate appeal has been filed against the impugned judgment, supported the submissions made by the learned counsel for the appellant/victim.

We have heard learned counsel for the parties and perused the material available on record.

The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:-

“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

The core question for consideration is whether the prosecution has proved beyond reasonable doubt that on 20.09.2013, accused persons/respondent Nos. 2 and 3 wrongfully restrained the victim, used criminal force with the intent to outrage her modesty, criminally intimidated her, and abused & insulted her on the basis of her caste.

The prosecution case mainly rests on the testimony of the victim (PW-1). In her examination-in-chief, she stated that while she was returning from school, accused- Dharmendra sang a Chhattisgarhi song and asked her to accompany him, and that both the accused persons came near her, caught hold of her hands and pulled her. She further deposed that she raised an alarm and, on hearing her cries, PW-2 Sunaina and others reached the spot, whereafter the accused persons fled on their motorcycle. However, a perusal of the written report (Ex.P-1) and FIR (Ex.P-2) shows that there is no specific mention that the accused persons caught hold of her hands, arm or waist, nor is there any detailed mention of specific caste-based abuses or the exact nature of the alleged threat. In her cross-examination, victim admitted that the written report (Ex.P-1) was written in her own handwriting and that certain facts stated by her before the Court were not mentioned either in the written report (Ex.P/1) or in her statement recorded under Section 161 Cr.P.C., which are material omissions going to the root of the prosecution case, particularly when the report was written by her. She denied the suggestion that after informing her father about the incident, her father went to the shop of accused- Dharmendra and assaulted him, and further stated that she had no knowledge that, due to the said assault, accused- Dharmendra sustained a serious ear injury and was admitted to a hospital at Bilaspur for treatment. She admitted that on 20.09.2013, the family members of accused- Dharmendra had lodged a report against her father at Police Station Pandariya and that the case in that regard was pending before the Pandariya Court. She, however, denied the suggestion that since her father was being implicated in a case of assault against accused- Dharmendra, she lodged the report of the incident after four days, and also denied the suggestion that no one had molested or insulted her.

Apart from this, PW-2 Sunaina, who was cited as an eye-witness, and PW-3 Rajeshwar Singh Loniya did not support the allegation that on the date of incident, accused persons caught hold of the hands of the victim or used any criminal force against her.

From the overall appreciation of the evidence on record, this Court finds that the prosecution has failed to prove beyond reasonable doubt that on the date of incident, accused persons/respondent Nos. 2 and 3 wrongfully restrained the victim or used criminal force with the intention to outrage her modesty. The victim has made material improvements in her statement before the Court, particularly regarding the accused persons catching hold of her hands and using specific abuses, whereas these facts are not mentioned in her written report (Ex.P/1) and FIR (Ex.P/2), which creates a reasonable doubt about the prosecution case. It also appears from the evidence that a report had been lodged by accused- Dharmendra against the father of the victim on the same date i.e. 20.09.2013, and thereafter the present report was lodged against the accused persons. Moreover, the allegation of caste-based insult in public view has not been clearly and consistently proved by the prosecution. The delay in lodging the written report (Ex.P/1) and FIR (Ex.P/2) has also not been satisfactorily explained. In absence of cogent, reliable and convincing evidence, it is not safe to hold that the accused persons are the authors of the alleged crime in question.

The Hon'ble Apex Court in its judgment dated 12.02.2024 passed in Criminal Appeal No.1162 of 2011 in case of Mallappa and Ors. Versus State of Karnataka, has held in para 36 as under:-

"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:-

"(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral and documentary;

(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;'

(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;

(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court."

Considering the facts and circumstances of the case and the law laid down by the Hon’ble Supreme Court in Jafarudheen & Mallappa (supra), the view taken by the learned trial Court appears to be a plausible and possible view. In the absence of any patent illegality or perversity, this Court is not inclined to interfere with the impugned judgment.

Accordingly, the acquittal appeal filed by the appellant/victim against the acquittal of accused persons/respondent Nos.2 & 3 is hereby dismissed at the admission stage.