Full Judgment
CRM-A No.896-MA of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CRM-A No.896-MA of 2012 Date of decision :
14. 2.2013 Sehdu Umar ........Applicant-appellant versus State of Haryana and others .......Respondents CORAM: Hon'ble Mr.Justice Jasbir Singh Hon'ble MRS.Justice Sabina Present:- Mr.J.S.Ghumman, Advocate, for the applicant-appellant --- Jasbir Singh, J.
Applicant-complainant Sehdu Umar has filed this application under Section 378 (4) Cr.P.C.seeking leave to file an appeal against judgment dated 6.9.2012 vide which respondents No.2 to 5 were acquitted of the charges framed against them.
The process of law was started on receipt of an application Ex.
PW6/A , moved by the applicant-complainant Sehdu Umar (PW-12) on 27.4.2006.
In that application, he has stated that on 19.4.2006, respondent No.4 has enticed away his daughter, aged about 13 yeaRs.and handed over her to her brother-in-law Rustam - respondent No.2, who committed rape upon his (complainant) daughter.
His daughter when came back, had narrated above fact to him.
The trial Judge has noted the following facts regarding case of the prosecution :- CRM-A No.896-MA of 2012 -2- “Complainant Sehdu moved an application to SHO Taoru stating therein that on 19.4.2004 at about 9.00 P.M.Khatuni wife of Ishak took away his daughter (her name has not been disclosed in view of Hon'ble Supreme Court's verdict) aged 13 years and handed over to her brother-in-law Rustam who committed rape upon her forcibly.
Thereafter his daughter returned to her house and narrated the incident to him.
He further deposed that his daughter was kidnapped by Rustam, Bhabbal, Chaokhan, Asu and Salim in a Maruti car and they handed over her to Rustam who committed rape upon her for four days and thereafter the aforesaid persons left his daughter at home.”
SI Subhash Chand PW-6 got the prosecutrix medico legally examined through Dr.
Santosh Kumari PW-1.
This witness, on perusal of Forensic Science Laboratory Report, opined that possibility of committing rape upon the prosecutrix, cannot be ruled out.
To determine age of the prosecutrix, she was examined by Dr.
Rameshwari, PW-2 on 16.5.2006.
It was opined by this witness that as per probe, age of the prosecutrix was 16 yeaRs.After getting the FIR recorded, the Investigating Officer SI Subhash Chand PW-6 went to the place of occurrence on 28.4.2006 and got prepared a rough site plan of that place with correct marginal notes.
The respondents-accused No.3 to 5 were arrested in the meantime.
Accused Rustam was arrested on 16.12.2010 and he was got medico legally examined by Dr.
HaRs.Chauhan PW-9.
The Investigating Officer recorded statements of the witnesses.
The investigation was verified by SHO Gajender Kumar CRM-A No.896-MA of 2012 -3- PW-13.
Thereafter, final report was presented in Court.
Copies of the documents were supplied to the respondents-accused as per norMs.Vide order dated 3.2.2011, case was committed to the competent Court for trial.
The respondents-accused were charge sheeted, to which they pleaded not guilty and claimed trial.
The prosecution produced 16 witnesses and also brought on record documentary evidence to prove its case.
On conclusion of the prosecution's evidence, separate statements of all the respondents-accused were recorded under Section 313 Cr.P.C.They denied allegations of the prosecution, pleaded innocence and false implication.
They also led evidence in defence.
The trial Judge on appraisal of evidence found case of the prosecution doubtful, benefit of which was given to the respondents- accused by ordering their acquittal.
Hence, this application.
Counsel for the applicant has vehemently contended that the trial Court has failed to appreciate the evidence in a proper manner when giving benefit to the respondents-accused.
After hearing counsel for the applicant and going through the paper book, The Court is not inclined to interfere in the judgment under challenge.
In the FIR, age of the prosecutrix was given as 13 yeaRs.To prove her age, the prosecution has not produced any birth certificate, entry from the Register of Chowkidar or any school certificate.
The trial Court has taken note of deposition made by Dr.
Santosh Kumari PW-1 and Dr.
Rameshwari PW-2.
Both the witnesses have opined age of the prosecutrix as 16 yeaRs.Further, not only as above, after examining the statement CRM-A No.896-MA of 2012 -4- made by father of the prosecutrix PW-12, the trial Judge came to a conclusion that age of the prosecutrix was about 16 yeaRs.Delay in recording the matter to the police, was also rightly taken against the prosecution.
Complaint was made to the police on 27.4.2006 regarding commission of the offence upon the prosecutrix on 19.4.2006.
It has come in the evidence that rape was committed upon the prosecutrix for four days.
For about a week, no complaint was made, either to the Panchayat or to the police.
For the above delay, the prosecution has failed to give any explanation.
Taking note of depositions made by the prosecutrix, her mother Amina PW-4 and complainant Sehdu Umar PW-12, the trial Judge has observed as under :- “13.
From the perusal of the statements of all the aforesaid three witnesses it reveals that the complaint was lodged to the police on the next day when the rape was committed upon the prosecutrix for the fiRs.time.
As per the prosecution version, the rape was committed upon the prosecutrix on 19.4.2006.
Meaning thereby the matter was reported to the police on 20.4.2006 but the position is otherwise.
PW6 SI Subhash Chand is the investigating officer of this case.
He deposed that on 27.4.2006 complainant along with victim and other family members came to the police station and had submitted complaint Ex.PW6/A to him.
It will not be out of place to mention here that document Ex.PW6/A and Ex.PW12/A is the same document of dated 27.4.2006.
PW6 SI Subhash Chand has further deposed that except application Ex.PW6/A no other application was given to him by the complainant.
Meaning thereby complaint Ex.PW12/A was submitted by the complainant to the police on 27.4.2006.
CRM-A No.896-MA of 2012 -5- 14.
From the perusal of the statements of the witnesses examined by the prosecution it reveals that contents of complaint Ex.PW12/A are absolutely contradictory with the statements of PW4, PW6, PW7 and PW12.
The contradictions in the statements of the witnesses are material contradictions and create a doubt over the prosecution version.”
It is true that statement of the prosecutrix alone is sufficient to convict an accused.
However, it is only in those cases where statement made by the prosecutrix inspires confidence.
The trial Court after reading the statements of the prosecutrix and other witnesses, came to a conclusion that on account of contradictions therein, those statements cannot be believed.
The manner in which the prosecutrix alleged to have taken away from her house, was also rightly doubted by the trial Court.
As per statement made by PW-4, PW-7 and PW-12, the prosecutrix was sleeping along with 8 other persons in a courtyard, when she was taken away by respondent No.4.
After analyzing the evidence on record, the trial Court said that it may not be possible to abduct a grown up girl in the presence of her parents, brothers and sisteRs.Dr.
Santosh PW-1 has stated that no external or internal injury was found on the person of the prosecutrix at the time of examination.
It has also come on record that as per case of the prosecutrix, she was taken from one place to another by respondent No.2.
During her journey, she failed to report the matter to any member of the public.
It was also noted by the trial Court that name of respondent No.4 was not mentioned in the CRM-A No.896-MA of 2012 -6- complaint Ex.PW12/A, moved on 27.4.2006.
The opinion expressed by the trial Court in acquitting the respondents-accused is as per evidence on record.
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v.
State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in 'State of Punjab v.
Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar v.
State of Rajasthan, 1991 (1) SCC 166.which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perveRs.or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.”
Similarly, in State of 'Goa v.
Sanjay Thakran, (2007) 3 SCC 755', and in 'Chandrappa v.
State of Karnataka, (2007) 4 SCC 415', it was held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
In 'Mrinal Das & others v.
The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameteRs.in which CRM-A No.896-MA of 2012 -7- interference can be made in a judgment of acquittal, by observing as under: “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”., for doing so.
If the order is “clearly unreasonable”., it is a compelling reason for interference.
When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reveRs.the decision of the trial Court depending on the materials placed.”
Similarly, in the case of 'State of Rajasthan v.
Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602', the Hon’ble Supreme Court has observed as under:- “7.
A judgment of acquittal has the obvious consequence of granting freedom to the accused.
This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.”
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence.
A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons.
An appeal against acquittal has always been differentiated from a normal appeal against conviction.
Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but CRM-A No.896-MA of 2012 -8- otherwise such interference is not called for.”
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10.
There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other.
The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with.
Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction.
The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.”
Counsel for applicant-appellant has failed to show any error in law on the basis of which interference can be made by this Court in the judgment under challenge.
Accordingly, the application is dismissed.
(Jasbir Singh) Judge (Sabina) Judge 14.2.2013 Ashwani