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2009 DIGILAW 843 (MP)

State of M. P. v. Munesh Misc.

2009-07-22

B.M.GUPTA, S.S.DWIVEDI

body2009
ORDER Dwivedi J. -- 1. The applicant/State has preferred this petition U/Sec.378(3) of Cr.P.C. for the grant of leave to appeal against the judgment of acquittal dated 24/03/2009 passed by first Additional Sessions Judge, Ashok Nagar in Sessions Trial No.6/09; whereby acquitted the respondent/accused from the charges U/Sec. 366 and 376(1) of IPC. 2. Brief facts of the case are that the respondent/accused-Munesh came to the house of complainant Parma! Singh and stayed with the complainant/Parmal Singh for two days, third day he returned back to his home. On the date of incident at about 12 a.m., the complainant/prosecutrix while went to bring clay near the nala, at that time, the respondent/accused came there on the motorcycle and asked the complainant/prosecutrix to accompany with him up to Guna, where the sister of the complainant/prosecutrix was admitted in the hospital and thereafter, took the complainant/prosecutrix on the motorcycle to Guna. When the complainant/prosecutrix did not return back to the house, her father Parmal Singh searched her and thereafter reported at police station Ashok Nagar. On 25/11/2008, it is alleged that the respondent/accused took the complainant/prosecutrix to various places and also committed rape on her and after return of the prosecutrix, her statement had been recorded by the police and a case U/Sec. 366 and 376 of IPC had been registered. The prosecutrix had been sent for medical examination to the Government hospital, after due investigation, charge sheet had been filed. 3. Learned trial Court, after due appreciation of the entire evidence on record by impugned judgment, acquitted the respondent/accused from the aforesaid charges, aggrieved by which, State has filed this petition for the grant of leave to appeal against the judgment of acquittal. 4. Having heard learned Public Prosecutor for the applicant/State and perused the impugned judgment. 5. It is submitted by Public Prosecutor on behalf of the State that in the statement of complainant/prosecutrix (PW-3) she categorically stated that the respondent/accused had kidnapped her and forcibly took her to Guna and thereafter committed rape on her, her statement has got further support by the FIR and circumstantial evidence. The learned trial Court has wrongly disbelieved the statement of complainant/prosecutrix and wrongly acquitted the respondent/accused, hence, prayed for grant of leave to appeal against the impugned judgment of acquittal. 6. The learned trial Court has wrongly disbelieved the statement of complainant/prosecutrix and wrongly acquitted the respondent/accused, hence, prayed for grant of leave to appeal against the impugned judgment of acquittal. 6. On persual of the statement of complainant/prosecutrix (PW-3), admittedly her age is of 19 years, she is a deserted lady, her husband had deserted her and she was living with her parents. The respondent/accused is also near relative (elder brother's brother-in-law of prosecutrix)of the complainant/prosecutrix. Incross-examination" the complainant/ prose cutrix admitted the fact that the alleged rape had been committed in the house of the near relative (mosi) of the respondent/accused. In cross-examination at para 10, the complainant/prosecutrix also admitted that 4-5 children, out of which, one boy is aged about 18 years, were also sleeping in the same room, where the alleged rape had been committed by the respondent/accused but, she had not made any cry against the fact of the respondent/accused. Under these circumstances, the learned trial Court came to the conclusion that if at all, any act of rape has been committed on the prosecutrix then it might be with the consent of the complainant as she is a major girl of 19 years. 7. Similarly, the learned trial Court also came to the conclusion that there is no sign of any injury on the body of the complainant as per the statement of Dr. Sudha Bhargav (PW-6) who examined the complainant/prosecutrix on which basis, this can be inferred that any forcible intercourse had been committed on the prosecutrix. Similarly, it is also on record that the concerning lady Dr. Sudha Bhargav (PW-6) had also prepared the slide from the vagina swab and after sealing it handed over to the police for its chemical examination and that slide had also been sent for the chemical examination by the Forensic Science Laboratory, but no such report of the laboratory has been proved and filed by the prosecution on which basis, this can be inferred that immediately before the examination the intercourse has been committed on the prosecutrix and if the available chemical examination report has not been produced by the prosecution then certainly, the adverse inference ought to be drawn against the prosecution that if such report had been produced then it will not support the statement of the prosecutrix. An affidavit has also been filed which is sworn by the compainant/prosecutrix before the Notary wherein, she admitted the fact that she went with the respondent/accused at her own will as she had been deserted by her previous husband. Looking to the aforesaid circumstances of the case, in our considered opinion, the finding of acquittal recorded by the trial Court does not appear to be perverse or illegal which can be interfered with by this Court. 8.It is settled principle of law that if the trial Court after due appreciation of the evidence came to the conclusion about the finding of acquittal then normally if the finding is not perverse this should not be interfered with by the Appellate Court, for this, the reliance can be placed on the decision of the Apex Court reported in Chandrappa v. State of Kamataka (2007 AIR SCW 1850), wherein the Hon'ble Apex Court laid down the legal principle for to entertain the appeal against acquittal and held here as under: " 39. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient ground', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4). An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental Principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. (4). An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental Principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not distrub the finding of acquittal recorded by the trial Court". 9. In view of the re-appreciation of the entire evidence and on the basis of the legal principle laid down by the Hon'ble Apex Court, we are of the considered view that the finding of acquittal recorded by the trial Court does not appear to be perverse. 10. Resultantly, no grounds are available for the grant of leave to appeal against the impugned judgment, hence, the petition filed on behalf of the applicant/State is dismissed accordingly.