State of Himachal Pradesh vs Rakesh Kumar

Sanjay Karol, J.—Assailing the judgment dated 08.05.2012, passed by learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No. 2/2012, titled as State Versus Rakesh Kumar, 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 09.10.2006, prosecutrix was kidnapped from Village Bhadela and made to forcibly sit in a vehicle by the accused. Same night she was subjected to sexual intercourse in the open paddy fields, from where accused took her to Palampur in a train, where again she was subjected to sexual intercourse. On 12.10.2006, accused took her to Kala Amb, District Sirmaur (H.P.) where he forcibly solemnized his marriage with her and started staying with her as her husband. On the basis of complaint registered by father of the prosecutrix, police recovered her from Kala Amb and her custody handed over to them. Police got the prosecutrix medically examined from Dr. Aruna (PW.15), who issued MLC (Ex.PW.15/B). According to the doctor, prosecutrix, who was above 17 years of age, was exposed to sexual intercourse. Medical age of the prosecutrix was also got determined from the Radiologist Dr. Raman Sharma (PW.16), who issued his opinion (Ex.PW.16/A). Other evidence pertaining to the age of prosecutrix was also collected alongwith scientific evidence for corroboration of the crime committed by the accused. Investigation revealed complicity of the accused in the alleged crime, hence Challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Sections 363, 366 and 376 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as seventeen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard Mr. Ashok Chaudhry, learned Additional Advocate General, assisted by M/s, Vikram Thakur, Puneet Rajta, learned Deputy Advocate Generals and J.S. Guleria, learned Assistant Advocate General on behalf of the State as also Mr. Sandeep Chauhan, 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 the essential ingredients so as to constitute the charged offence.

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.""

Before us, age of the prosecutrix which is more than 16 years, is not disputed. In any case, from the medical evidence in the shape of opinion (Ex.PW.15/C) of the Radiologist, so rendered by Dr. Raman Sharma (PW.16), it stands established that the victim was above 17 years of age. Parents of the prosecutrix, Chunk Deen (PW.2) and Sukhbir Bibi (PW.6) also do not clearly state her age, at the time of commission of crime, to be less than 16 years of age.

In Court, prosecutrix (PW.5) states that on 09.10.2006 when she was on her way to her college, accused came in a vehicle and made her sit in the same. After some time they got down at a place where there was a peepal tree, from where, on foot, they went to Dam area. Accused threatened to marry her but being from another religion she refused. Thereafter, accused took her to a Khud where they spent the night in the paddy fields, where she was raped by him. Early morning at 4.00 AM, accused took her in a train to Palampur, where she met his relatives. From there they went to Koparlahad Railway Station and spent the night there. Next day, they visited the house of relative of the accused situated in the jungle, and returned to Raja-Ka-Talab in the evening, on foot. On 12.10.2006, accused took her to Kala Amb and made her stay in a rented accommodation owned by Phool Singh. Parties started residing there. However she was recovered by the police and subjected to medical examination. To us, her version that she was threatened and subjected to sexual intercourse without her consent does not inspire confidence at all, for after all she is not an illiterate person. She was a student, studying in class Twelve. From 09.10.2006 till 14.10.2016, she remained with the accused. She travelled on foot and by way of public transport to various places. She crossed various public places like bazaar, railway station and also visited house of relatives of the accused, yet she neither tried to flee away or make any grievance about the act, conduct or behaviour of the accused to anyone. She did not make any hue and cry. She did not protest his advances either. It is not her case that she was under constant threat, fear or intimidation from the hands of the accused. Significantly no marks of injury were found on her body. She admits not to have raised any alarm at the time she was forcibly taken away by the accused. Though she defends her conduct of solemnizing her marriage with the accused, under threat, but then this version of hers, to us, does not inspire confidence. It appears that both were having intimate relationship and she voluntarily left her parental house in the company of the accused. Witness Dharam Singh (PW.8) owner of the vehicle in which accused travelled alongwith the prosecutrix admits that both the accused and the prosecutrix sat in the vehicle in a normal way.

Thus, to our mind, prosecution has not been able to establish, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused took the prosecutrix without her consent, on the pretext of marrying her and compelled her to have illicit intercourse and forcibly committed rape upon her against her will.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused has 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 trial Court 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, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.