State of Himachal Pradesh vs Sunil Kumar

Sanjay Karol, J.—State has appealed against the judgment dated 25.11.2011 of the learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, Himachal Pradesh, passed in Sessions Case No. 17-B/2011, titled as State v. Sunil Kumar & another, challenging the acquittal of respondents Sunil Kumar and Babu Ram (hereinafter referred to as the accused), who stand charged for having committed an offence punishable under the provisions of Section 376 IPC and 376/ 109 IPC, respectively.

It is the case of prosecution that on 11.3.2011, prosecutrix alongwith her grandson had gone to the house of in-laws of her daughter Sapna Devi at Gallu. On her way back, on 14.3.2011 at about 3 p.m., accused made her sit in a vehicle. After some time, prosecutrix, under threat, was forced to consume liquor. Midway at Chogan Colony, she was subjected to sexual intercourse, without her consent, by accused Sunil, who was helped by co-accused Babu Ram. Somehow, prosecutrix was able to save herself and report the matter to Smt. Sheela Devi (PW-4), Pradhan of the Panchayat, who in turn informed the police. Statement (Ex. PW-1/A) of the prosecutrix, under the provisions of Section 154 of the Code of Criminal Procedure, was recorded, on the basis of which FIR No. 31 dated 18.3.2011 (Ex. PW-9/B), under the provisions of Section 376(2) of the Indian Penal Code, was registered at Police Station, Baijnath, District Kangra, Himachal Pradesh. Prosecutrix was got medically examined from Dr. Tenzin Dechen and MLC (Ex. PW-11/A) and final report (Ex. PW-11/B) taken on record by the police. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused Sunil Kumar and Babu Ram were charged for having committed an offence punishable under the provisions of Sections 376 and 376/ 109 of the Indian Penal Code, respectively, to which they did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 11 witnesses and statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of false implication.

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

We have heard Mr. B.S. Parmar, learned Additional Advocate General and Mr. Vikram Thakur, learned Deputy Advocate General, on behalf of the State as also Mr. Bhupinder Pathania, 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 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."

That prosecutrix was major is not in dispute.

As per Dr. Tenzin Dechen, who has proved MLC (Ex. PW-11/A), no sign of recent vaginal penetration was found. Also, no signs of injury were found on the body of the prosecutrix. Corroborative evidence in the shape of scientific reports also does not establish the accused having subjected the prosecutrix to rape. That prosecutrix had consumed alcohol is not proved on record. Dr. Ashwani Sharma (PW-3), who medically examined accused Sunil Kumar, did not find any injury marks on his body.

Independent of the aforesaid observation, what needs to be examined is as to whether testimony of the prosecutrix (PW-1) itself inspires confidence or not. Prosecution has to prove its case beyond reasonable doubt.

Prosecutrix states that on 14.3.2011, she boarded the car in which both the accused were travelling. She was forced to consume alcohol. The vehicle was taken to the Chogan Colony where both the accused caught her and took her to a tea-garden. Thereafter, accused Sunil Kumar raped her. She was also beaten up by them. We do not find testimony of this witness to be inspiring in confidence at all. That she had gone to the house of her elder daughter Sapna at Gallu, alongwith her grandson Kanav, has not been established on record by any other corroborative evidence. She states that her grandson was of three years of age. She voluntarily boarded the vehicle of the accused. Police has not collected any evidence to establish that either the accused or the prosecutrix had consumed alcohol. She is categorical that the incident was reported to Pradhan Sheela Devi same day i.e. 14.3.2011, yet report was lodged with the police only on 18.3.2011. Delay in reporting the matter, in the instant case, has not been explained either by the prosecutrix or the Pradhan, who states that prosecutrix had not disclosed names of the accused persons to her. In fact, whether the prosecutrix was raped by the accused at all or not is not evident from record, for Pradhan, in her uncontroverted testimony does admit that "it is correct that when Leela Devi had come, she was not sure whether she was raped or not. Self states that at that time she was confused". Pradhan states that prosecutrix narrated the incident to her only on 18.3.2011. Thus, version of the prosecutrix stands contradicted on record. Delay of four days in reporting the matter has not been sufficiently explained.

That apart, version of the prosecutrix that the accused had given beatings and hit her with stone, weighing 1 kg, as a result of which she sustained injuries on her head and forehead, is not corroborated by any medical evidence. It stood falsified from the record.

To us, genesis of prosecution story of the accused having taken the prosecutrix in their car appears to be false. Prosecution has examined Manoj Kumar (PW-5), who states that the accused had hired a taxi and made one lady, who was having a boy, sit in the vehicle. Now prosecutrix does not state presence of any third person in the car or the fact that the vehicle was a taxi and Manoj Kumar does not identify the lady who had travelled in the vehicle to be the prosecutrix.

Hence, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused Sunil Kumar forcibly subjected the prosecutrix to rape and co-accused Babu Ram helped accused Sunil Kumar to commit the said crime.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

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., , 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 ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.