State Of Uttarakhand vs Subhash

Sudhanshu Dhulia, J

This is a Government Appeal which has been filed by the State against the judgment and order dated 07.06.2012, whereby the Trial Court has acquitted the respondent/accused under Sections 376, 452 and 506 of IPC.

In this case, an application was moved by the prosecutrix under Section 156(3) of CrPC before the learned Magistrate, Lansdowne Garhwal wherein she stated that the applicant and the accused/respondent Subhash, aged 40 years, are the residents of same Village Naugaon, Patti Silla, Tehsil Lansdowne, District Pauri Garhwal and are also related to each other, though there is an enmity between the applicant's family and that of the respondent. On 14.09.2006 at noon, when the applicant's father was admitted in a hospital in Kotdwar and her mother had gone to the jungle to collect fodder for the animals and the applicant was alone in her house, taking advantage of it, respondent Subhash entered her house and with his one hand, he caught hold of both the hands of the prosecutrix towards her back and from other hand he closed her mouth. Thereafter the applicant was dragged to the next room where she was dropped on the floor. The Salwar which she was wearing was pulled down and thereafter she was raped by the respondent. The prosecutrix later threatened by the respondent that in case she reports this matter to anyone she would be killed. For reasons of shame and public humiliation, she did not report the matter to anyone. But again on 29.09.2006 i.e. barely 15 days from the earlier incident, at about 12.30 in the afternoon, when she was again alone in her house and was working in the kitchen and her father was admitted in the hospital in Kotdwar, the respondent/accused again entered into her house and dragged her inside the room and raped her. She was completely traumatized and worried after the incident. The next day i.e. on 30.09.2006, she disclosed the incident to her mother. Her mother, in turn, disclosed the incident to her father. On 30.09.2006, a person from the Home Guard Department came to her house and informed them that they have been asked to be present before the Patwari of Lansdowne as the respondent had filed an application against them before the Patwari. On 17.10.2006, the prosecutix gave an application to SDM, Lansdowne in which orders were passed for further action to be taken by the Tehsildar, but nothing further happened. Therefore, she was constrained to move an application under Section 156 (3) of CrPC. On the said application, orders were passed by the learned Magistrate and an FIR was registered against the respondent on 12.01.2007 under Sections 376, 354, 452 and 506 of IPC.

At this juncture, it must be stated that in the hill areas of Uttarakhand, police powers have been given to the revenue authorities and since the incident fell within the jurisdiction of Revenue Police, Pauri Garhwal, the investigation was done by the Patwari, who after completing the investigation had filed the charge-sheet against the respondent under Sections 376, 452, 354 and 506 of IPC.

Considering the nature of the case, the matter was committed to the Court of Sessions, Pauri Garhwal. On 02.06.2007 charges were framed by the learned Sessions Judge, Pauri Garhwal against the respondent under Sections 376, 452 and 506 of IPC.

Meanwhile, considering that it was a case of rape, medical examination of the prosecutrix was conducted on 13.01.2007. In her medical examination, no injuries, either external or internal, were found on the body of the prosecutrix. There was no injury on her private parts as well. In order to determine the exact age of the prosecutrix, a radiological examination of the prosecutrix was advised. Meanwhile, vaginal smears were also taken and sent for pathological examination. Vaginal smears did not show any spermatozoa. After radiological examination, the age of the prosecutrix was determined as about 18 years.

Prosecutrix was examined as PW1 on 29.03.2008. In her examination-in-chief, she recognizes the accused by stating that Subhash is of the same village and they are related to each other. Then she states that on 14.09.2006 at about 12.30 PM, when she was alone in the house, as her mother had gone in the jungle to collect grass and firewood and her father was admitted in a hospital in Kotdwar, the accused entered her house and with one hand he caught both her hands from the back and with other hand he closed her mouth. She was then dragged inside the room and later dropped on the floor and then she was raped. She was extremely traumatized and therefore she did not report the matter to anyone. Then again on 29.09.2006 at about same time i.e. 12.30 PM, the accused entered her house and caught hold of her hands and dropped her on the floor, but later ran away. She told this incident to her mother and then her mother, in turn, told this incident to her father, who reported the incident to Patwari.

Prosecutrix was cross-examined by the defence. On being questioned as to how many brothers and sisters she has, she replies that she has two elder sisters and one brother who is also elder to her and her two elder sisters have got married. She then says that her elder brother is unmarried and then replies as to where her two brothers-in-law are working, etc. On being questioned by the defence, she replies that before the two incidents of rape (i.e. the incidents dated 14.09.2006 and 29.09.2006), the accused Subhash had filed a case against her family. She also admits that two months prior to this incident on 14.07.2006, there was a compromise reached between Subhash and her family. She denies that she had sexual relations with any other person prior to the incident. She then states that prior to the incident of 14.09.2006, she had soiled her clothes with blood. She also admits that these clothes were shown to Patwari who was doing the investigation, etc.

PW2 is the mother of the prosecutrix who states that the incident is about one and half years old. During day time, she goes to jungle to collect grass and firewood. She states that her daughter had told her that she had been raped by the accused, etc., and thereafter she reported the matter to her husband which resulted in the police case against the accused. She admits that she gave birth to two girl child prior to giving birth to the prosecutrix. She also admits that there was enmity between her family and that of the accused and compromise had reached between the parties.

PW3, PW4 and PW5 are the doctors who had examined the prosecutrix at different stages. PW3 Dr. D.K. Jain is the Radiologist who has conducted the radiological examination of the prosecutrix and confirmed her age to be about 18 year with a margin of six months on either side. PW4 is Dr. Reeta who had examined the prosecutrix on 13.01.2007 at Government Combined Hospital, Kotdwar. She did not find any injury, external or internal, on the body of the prosecutrix. Her secondary sex characters had developed, etc. PW5 is Dr. Subhash Kumar who confirmed that no spermatozoa was found in the vaginal smears of the prosecutrix.

At this juncture we may note that although the hymen of the prosecutrix was found to be ruptured, yet this itself cannot be a determining factor as to the sexual engagement of the prosecutrix, to which we will revert in a while.

PW6 is Patwari who had done the investigation and filed the charge-sheet in the matter.

Learned Trial Court, after appreciating the evidence adduced on the record, although observed that the prosecutrix has given statement about the rape in her examination in-chief as well as in her cross-examination, came to the conclusion that it is not a case of rape.

We have appreciated the evidence of the prosecution adduced before the Trial Court and we find no reason to take a view which is different from the view taken by the Trial Court under the facts and circumstances of the case and on the strength of the evidence which was there before the Trial Court.

Undoubtedly, in a case of rape, conviction can be based on the sole testimony of the prosecutrix. This testimony, however, must stand the test of reason and should inspire the confidence of the Court. In the present case, we find that although the prosecutrix was allegedly raped on 14.09.2006, but she did not immediately report the incident to any person. The prosecution story is also weakened by the fact that the prosecutrix had not sustained any injury. Moreover, she did report the incident to her mother after the second incident on 29.09.2006, but this too did not result in lodging of the FIR immediately as we can see that the FIR was lodged on 12.01.2007. Hence, there is an inordinate delay in lodging of the FIR, in a case of rape.

In these circumstances, the case of the prosecution gets extremely weak. The age of the prosecutrix is also a relevant factor as an argument has been raised by the learned Senior Counsel for the respondent Sri R.P. Nautiyal that at the relevant time, the consent would be immaterial only if the prosecutrix is less than 16 years of age (this has now been increased to 18 years) after the amendment.

We are also conscious of the fact that we are dealing with an appeal against acquittal, and it is a settled principle of law, that though the powers of the Appellate Court remain the same as it has while hearing the appeal against conviction, the Appellate Court has to be more circumspect and cautious in these matters. In the case of Muralidhar alias Gidda and another vs. State of Karnataka, reported in (2014) 4 SCC 730, after relying on a catena of judgments of the Apex Court on the powers of the Appellate Court while deciding an appeal against acquittal, had said that following principles shall be borne in mind:-

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and

(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

We hence find no strength in this Government Appeal. It is hereby dismissed. Judgment and order of the Trial Court is affirmed. Let a copy of this judgment, along with LCR, be sent to the Court below for onward compliance.