State of Himachal Pradesh vs Vikas

Sanjay Karol, J.—State has appealed against the judgment dated 28.7.2011 of the learned Additional Sessions Judge, Kinnaur at Rampur, Himachal Pradesh, passed in Sessions Trial No. 8-AR-7 of 2007/2011, titled as State of Himachal Pradesh versus Vikas alias Vicky, challenging the acquittal of respondent Vikas (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Sections 363, 366A & 376 of the Indian Penal Code.

Prosecution, through the testimony of prosecutrix (PW-12), wants the Court to believe that on 31.12.2006, accused kidnapped the prosecutrix at Narkanda (Himachal Pradesh) and took her to Ambala (Haryana), where she was forcibly subjected to sexual intercourse. Father of the prosecutrix, Raj Kumar (PW-11), finding his daughter not to have returned home, following day, i.e. on 1.1.2007, lodged a complaint at Police Station, Kumarsain, District Shimla, Himachal Pradesh, on the basis of which FIR No. 4/07, dated 1.1.2007 (Ex. PW-7/A), under the provisions of Sections 363 & 366A of the Indian Penal Code, was registered. Police party recovered the prosecutrix on 4.1.2007 from the house of Sushma Mehta (PW-5), whereafter she was got medically examined from Dr. Sudesh Kumari (PW-10), who issued MLC (Ex. PW-10/B). 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, 366A & 376 the Indian Penal Code to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication and also examined one witness in his defence.

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. Ashok Chaudhary, learned Additional Advocate General & Mr. Vikram Thakur, Deputy Advocate General, on behalf of the State as also Mr. Sunil Sharma, 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." "

As per findings returned by the trial Court, prosecutrix voluntarily left her parental house in the company of the accused. She was neither under any threat, force or coercion from any quarter. Prosecutrix had ample opportunity of raising hue and cry or informing her relatives or the general public, which she failed to do so. Also, Ajay Kumar (DW-1) probabilized the defence taken by the accused that prosecutrix voluntarily left her house in the company of the accused.

The alleged incident took place on 30.12.2006. Prosecutrix was born on 7.2.1990, which fact is evident from the Pariwar Register (Ex. PW-9/A), so proved on record by Praveen Kumar (PW-9). Testimony of Mani Ram (PW-8), who has proved certificate (Ex. PW-8/A), extract from the Births and Deaths Register, is also to similar effect. At the relevant time, prosecutrix was between the age of 16 and 18 years. Thus, she had crossed the age of discretion.

Court record reveals that independent witness Smt. Vidya Devi (PW-3) has not supported the prosecution case. Despite extensive cross-examination, nothing fruitful could be elicited from her testimony.

At the time of medical examination, Dr. Sudesh Kumari (PW-10) found no external marks of bruises, abrasion and laceration on the body of prosecutrix. Based on the FSL report (Ex. PW-10/C) and the medical opinion, MLC (Ex. PW-10/B), doctor opined that prosecutrix was subjected to sexual intercourse.

As per the version of Raj Kumar (PW-11), on 30.12.2006, prosecutrix did not return home from school. He made enquiries from his relatives, but her whereabouts were not known to any one. On 31.12.2006, he received a call from the prosecutrix. She disclosed that she was at Ambala with the accused. Accordingly, he reported the matter to the police on 1.1.2007, on the basis of which FIR was registered. Police recovered the prosecutrix from Ambala on 4.1.2007. Now, this witness does not state that prosecutrix was either kidnapped, threatened or intimidated by the accused.

Sushma Mehta (PW-5), from whose house prosecutrix was recovered, states that prosecutrix and accused stayed with her for 3-4 days. She was informed that the accused and the prosecutrix had solemnized their marriage. Significantly, this witness clarifies that prosecutrix freely moved at different public places during her stay at Ambala. Also, prosecutrix informed that she would rather die than return home. In fact prosecutrix had telephonically informed one of her aunts about such fact. She also had conversation with her father on 3-4 occasions, expressing her happiness about the relationship. This witness has thus totally demolished the prosecution case.

In Court, prosecutrix has deposed in the manner in which prosecution wants the Court to believe. But, her version that on 31.12.2006, accused took her by deceit by mixing "something" in her tea, as a result of which she became unconscious, is not inspiring in confidence at all. She admits that on 1.1.2007 she had telephonically informed her father. Her whereabouts were thus known. At that time she was with the accused. Also, she admits to be in relationship with him. Parties exchanged letters (Ex. DA, DB, DC, DD), perusal of which only reveals that she was in love with the accused. She admits to have travelled in local transport at different and several public places, yet she did not raise any hue and cry; sought help from people or tried to flee away. Significantly, she does not state that she was under any threat, apprehension, intimidation or coercion. Then why is it that she did not call the police. She admits to have performed daily chores in the house of Sushma Mehta. She admits to have had sexual intercourse with the accused at the time when she was fully conscious and not to have raised any alarm or resisted his overt acts.

As such, to our mind, it is a case of consent, where the prosecutrix allowed the accused to voluntarily and willingly have sexual intercourse with her. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused kidnapped the prosecutrix from lawful guardianship of her parents; induced her with intent that she may be forced to have illicit sexual intercourse; and thereafter raped her.

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 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., , 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.