State of Himachal Pradesh vs Budhi Singh

Sanjay Karol, J.—Assailing the judgment dated 24.11.2008, passed by learned Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P., in Sessions Trial No. 7/2004: 58/2005, titled as State of Himachal Pradesh v. Budhi Singh @ Dharam Chand & others, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 24.3.2003, prosecutrix (PW-2) alongwith her friend Leela Devi (PW-3), both students of 10th Class, were on their way to school. Near Khad Kalyana, accused forcibly made the prosecutrix sit in a vehicle and took her away. PW-3 informed her mother Smt. Pitambri Devi (not examined) about the incident. Also Sh. Devi Ram (PW-1), father of the prosecutrix was informed about the incident who reported the matter to the police. Statement of Leela Devi (PW-3) under Section 154 Cr.P.C. (Ext. PW-3/A) was recorded. Investigation so conducted by the police party, headed by Inspector K.D. Sharma (PW-13), revealed that accused took the prosecutrix to his sister''s house at Dharamshala. Later he forcibly solemnized his marriage with the prosecutrix in a temple. Thereafter in the night he subjected her to sexual intercourse against her wishes. This was in the guest house where they were staying. On 25.3.2003 when whereabouts of the prosecutrix were made known, police recovered and handed over her custody to her parents. Prosecutrix was got medically examined from Dr. Anjali Soni, who issued MLC (Ext. PX). Investigation further revealed that at the time of commission of crime, prosecutrix was below the age of discretion. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused Budhi Singh was charged for having committed offences punishable under the provisions of Sections 363, 366 and 376 of the Indian Penal Code, whereas, accused Umesh Kumar, Lal Singh, Naresh Kumar s/o Sh. Sher Singh and Naresh Kumar s/o Sh. Hirda Ram were charged for having committed offences punishable under the provisions of Sections 363 and 366 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined fifteen witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of the witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar and Mr. Ashok Chaudhary, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur and Mr. Puneet Rajta, learned Dy. A.Gs and Mr. J.S. Guleria, learned Asstt. A.G., on behalf of the State as also Mr. G.R. Palsra, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

Out of fifteen prosecution witnesses, prosecution case primarily rests upon the testimonies of prosecutrix (PW-2), her father Devi Ram (PW-1), friend Leela Devi (PW-3), Baba Anand Giri (PW-7) and Sh. Rajesh Verma (PW-8). Record reveals that PW-3 and PW-7 have not supported the prosecution.

Before we deal with the testimonies of these witnesses, we shall first deal with the question of age of the prosecutrix. Naresh Kumar (PW-4) has proved certificate (Ext. PW-4/A) recording date of birth of the prosecutrix to be 20.11.1985. Close scrutiny of testimony of this witness only reveals that he is not the author of the entries made in the register. Also there is serious doubt about the genuineness of the entries so made. He admits that there are no signatures of the Secretary against such entry. There is overwriting and name of the prosecutrix appears to have been inserted later on. There is difference in the ink used for making entries (page No. 114) at the place where date of birth of the prosecutrix is recorded. Thus there is no legal evidence on record. According to Devi Ram (PW-1) as on the date of commission of alleged crime, prosecutrix was 17 years of age. He does not place on record any document in support thereof. Prosecutrix was examined in the Court on 12.5.2008 when she disclosed her age to be 23 years, which means that she was around 18 years of age at the time of commission of crime. Thus prosecution has not been able to establish the exact age of the prosecutrix and in any event not to be below 16 years as on the date of alleged incident.

In her examination-in-chief, prosecutrix (PW-2) states that accused forcibly made her sit in a vehicle (Mahindra Pick-up) and took her to Dharamshala. Accused Budhi Singh first took her to the house of his sister Champa Devi where she was told that he would be solemnizing his marriage with her. Thereafter she was forcibly taken to the temple and against her wishes, marriage ceremony was performed. She was forcibly made to sign certain papers. This was so done on 24.3.2003. In the night they stayed in a guest house where accused Budhi Singh forcibly raped her. In the morning of 25.3.2003 police came and handed over her custody to her parents. Version so narrated by the prosecutrix, un-inspiring in confidence, is unbelievable for in her cross examination she admits that she passed through various bazaars and never raised her voice or protested against the acts of the accused. In fact, she admits to have purchased articles from Kotli Bazaar where shops were open and number of people present. She neither protested nor raised any hue and cry, but continued to remain in the company of the accused persons. It is not that she was under any threat, fear, coercion or intimidation from any one of them. She admits to have walked to the house of Champa Devi on foot. She also admits that she crossed several houses where people were residing yet she did not seek their help. She also did not try to flee away. Even in the temple where marriage ceremony was performed, she did not protest. Her version that her signatures were forcibly obtained is mere improvement as it does not find mention in her previous statement (Ext. DA) so narrated to the police. Further in the guest house where they stayed, she did not protest.

Friend of the prosecutrix, Leela Devi (PW-3), who was declared hostile and cross examined by the Public Prosecutor also does not advance the case of the prosecution at all. However, her version that accused forcibly took the prosecutrix in a vehicle is un-inspiring in confidence for she admits to have gone to the school; appeared in a paper and yet not reported the matter to anyone except her mother, which version we also find to be a mere exaggeration and improvement from her previous statement (Ext. PW-3/A) with which she was confronted.

Priest of the temple, Baba Anand Giri (PW-7), who solemnized the marriage has categorically deposed that prosecutrix and the accused who disclosed themselves to be above 18 years of age, voluntarily got performed the marriage ceremony.

To us, it appears that prosecutrix voluntarily, without any threat, fear or intimidation left with the accused. She travelled from her house (district Mandi) to Dharamshala (district Kangra) and solemnized her marriage with accused Budhi Singh. It appears that marriage was not acceptable to the family of the prosecutrix and as such, on the asking of her father got the case registered against the accused.

Having perused the testimonies of the prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that the accused persons kidnapped the prosecutrix (PW-2), with an intent of compelling her to marry accused Budhi Singh against her will or that she was forced or seduced to have illicit intercourse with accused Budhi Singh, who raped her. There is no clear, cogent, convincing and reliable material on record proving the guilt of the accused. It cannot be said that the findings returned by the Court below are not borne out from record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.