State of Himachal Pradesh vs Sandeep Singh

Sanjay Karol, J.—Assailing the judgment dated 07.07.2012, passed by learned Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 45-ST/7 of 2011, titled as State of Himachal Pradesh Versus Sandeep Singh, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

This is one of those cases where both the prosecutrix and her mother have not supported the prosecution case in Court. They were declared hostile and despite extensive cross-examination nothing fruitful could be elicited from their testimony.

FIR No. 11/2011 dated 27.02.2011 (Ex.PW.14/A) was registered at Police Station, Rajgarh, against the accused, on the complaint that prosecutrix (PW.2) was criminally intimidated and subjected to forcible sexual intercourse by the accused at Dhar jungle, Rajgarh. Allegedly at that time, prosecutrix was below 16 years of age. Police party headed by Roshan Lal (PW.14) got the prosecutrix medically examined from Dr. Chitwan (PW.15) as also Dr. Mukti Gautam (PW.13), who issued MLCs (Ex.PW.13/A and Ex.PW.15/A respectively). 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 376 and 506-II 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 fifteen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took a plea of innocence.

Trial Court after appreciating the testimony of the 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. Vinod 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.""

As per statement of Dr. Mukti Gautam (PW.13) dental age of the prosecutrix, at the time of alleged crime, was between 14 and 16 years. The Radiological age, as is so determined by Dr. D.D. Sharma (PW.9) is between 13 1/2 and 16 years. But then both the doctors admit that there can be error in the estimation of age up to 3 years.

Rajesh Kumar (PW.12), Principal of the school, where prosecutrix was allegedly admitted in 1st class, states that as per certificate (Ex.PW.12/A) issued by the Secretary, Gram Panchayat, Shilangi, prosecutrix was born on 15.01.1999. This certificate cannot be relied upon for not to have been proved in accordance with law. Witness admits that the basis on which this entry was made in the school record was not produced in Court, nor was it handed over to the police. Tarun Parkash (PW.3) tried to prove extract of the Parivar Register (Ex.PW.3/B), but then neither is he the author of the entries made in the register nor he can verify correctness thereof. Further Ramesh (PW.11) father of the prosecutrix states that he never got name of the prosecutrix entered in the Gram Panchayat. Though he states that date of birth of the prosecutrix was recorded in the school record on the basis of Parivar Register. But what is crucial and fatal is his deposition dated 02.04.2012, to the effect that prosecutrix was aged 171/2 to 18 years, which means that as on the date of occurrence of crime, i.e. 26.02.2011, prosecutrix was more than 16 years of age, above the age of discretion. Thus, it cannot be said that prosecution has been able to conclusively establish, beyond reasonable doubt, that at the time of commission of alleged crime, prosecutrix was less than 16 years of age.

As observed earlier, in the instant case, prosecutrix (PW.1) has not supported the prosecution case at all. All that she states is that on 26.02.2011, while she was going to the place of her Mama (Babu Ram) someone came and slapped her, whom she could not recognize. She denies having been subjected to sexual intercourse. She is aware of consequences of falsely deposing in Court, yet she stood to her version of not having been subjected to forcible sexual intercourse, more so by the accused. She clarifies that under fear of police she appended her signatures. To same effect is the version of her mother Smt. Tota Devi (PW.2).

What totally knocks down prosecution case is the version of Dr. Chitwan (PW.15), who not only states that no marks of injury were found on the body of the prosecutrix, but also that "the prosecutrix has divulged at the time of her examination that she has sexual relationship one month earlier with some other person. It is correct that she can be considered as habitual sexual intercourse." Thus, version of the prosecution that prosecutrix was subjected to forcible sexual intercourse by the accused in the forest stands totally knocked down and not to have been proved on record.

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 forcibly committed rape upon the prosecutrix against her will and criminally intimidated her to do away with her life.

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.