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2012 DIGILAW 300 (CHH)

STATE OF C. G. v. DIPAK KUMAR

2012-11-07

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Radhe Shyam Sharma, J. 1. This appeal is directed against judgment dated 24-7-2003 passed by First Additional Sessions Judge, Baloda Bazar in Sessions Trial No. 492/2002. By the impugned judgment, accused/respondent No. 1 Dipak Kumar has been acquitted of the charges framed against him under Sections 342, 376(1) and 506 IPC and accused/respondent No. 2 Kiran Bai has been acquitted of the charges framed against her under Sections 342, 376 (1) read with Section 109, 376(1) read with Section 114 IPC. 2. Case of the prosecution, in brief, is as under: On 15-9-2002, at about 9:00 P.M., prosecutrix (PW-7, daughter of Sadhuram Ratre {PW-9}), aged about 15 years, along with her brother Ravi Kumar and cousin brother Shankar (PW-1) had gone to watch video near her house. At about 10:00 P.M., the prosecutrix (PW-7) went for urinal in the Byoltra and when she was returning to watch the video, respondent No.1 Dipak Kumar caught her hand and forcibly took her into his house and committed sexual intercourse forcibly with her in the closed room of his house. At that time, respondent No.2, Kiran Bai (mother of respondent No. 1 Dipak Kumar) was present there and she had closed the door. Ravi Kumar (brother of prosecutrix) seemed that the prosecutrix (PW-7) did not come back from urinal, therefore, Dashrath (PW-8), Janaki Bai (PW-10) and Pawan Kumar searched for the prosecutrix (PW-7). At that time, they heard the noise of the prosecutrix (PW7) from the house of respondent No. 1 Dipak Kumar. They opened the door of the house of the respondents where they recovered the prosecutrix. The prosecutrix narrated the incident to her family members. Sadhuram Ratre (PW9) made written complaint (Ex.P-11) against the respondents in Police Station Palari. On the basis of written complaint (Ex.P-11), First Information Report (Ex.P-12) was recorded in Police Station Palari. The prosecutrix was sent to Primary Health Centre, Palari vide Ex.P-6A for medical examination. Dr. N. Bajpai (PW-6) examined the prosecutrix and gave her report (Ex.P-6). She found that the hymen of the prosecutrix was old ruptured and she opined that the prosecutrix (PW-7) had undergone act of sexual intercourse and there were definite signs which could be caused by act of intercourse within 12 to 24hrs back. Dr. N. Bajpai (PW-6) advised for X-Ray examination. After X-Ray, Dr. She found that the hymen of the prosecutrix was old ruptured and she opined that the prosecutrix (PW-7) had undergone act of sexual intercourse and there were definite signs which could be caused by act of intercourse within 12 to 24hrs back. Dr. N. Bajpai (PW-6) advised for X-Ray examination. After X-Ray, Dr. N .Bajpai (PW-6) opined that the age of the prosecutrix (PW-7) was between 16 ½ to 17 years. Slide of vaginal swab of the prosecutrix (PW-7) was also prepared. Respondent No. 1 Dipak Kumar was sent to Primary Health Centre, Palari for medical examination vide Ex.P-4A. Dr. F.R. Nirala (PW-5) examined respondent Dipak Kumar and gave his report (Ex.P-4). He found that respondent Dipak Kumar was competent to perform sexual intercourse. In further investigation, birth certificate (Ex.P-13) of the prosecutrix (PW7) was seized vide Ex.P-10. Blue colour panty of prosecutrix (PW-7) was seized vide Ex.P-3. A Janghiya (underwear) of respondent No. 1 Dipak Kumar was seized vide Ex.P-9. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-17. Report (Ex.P-20) was received there from. After completion of the investigation, charge sheet was filed against the acquitted persons /respondents in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by the First Additional Sessions Judge, Baloda Bazar, who conducted the trial and acquitted the respondents as above. 3. Shri Akhil Mishra, learned Deputy Government Advocate for the appellant/State argued that on the date of incident age of the prosecutrix was below 16 years. He further argued that the prosecutrix (PW-7) was a reliable witness. He further argued that the finding recorded by the trial Court is perverse. Learned trail Judge fell into error while not relying the testimony of the prosecutrix. It was proved that respondent Dipak Kumar had committed forcible sexual intercourse with the prosecutrix. The acquittal vitiates and the respondents should be punished accordingly. 4. On the other hand, Shri Vivek Rathore, learned counsel for the respondents opposed the above arguments and supported the impugned judgment of acquittal recorded by the learned trial Court. 5. Having heard learned counsel for the parties at length, we have perused the record of Sessions Trial No. 492/2002. 6. 4. On the other hand, Shri Vivek Rathore, learned counsel for the respondents opposed the above arguments and supported the impugned judgment of acquittal recorded by the learned trial Court. 5. Having heard learned counsel for the parties at length, we have perused the record of Sessions Trial No. 492/2002. 6. Learned Additional Sessions Judge held in paragraph 18 of the impugned judgment that the prosecution has not been able to prove that the prosecutrix was a minor on the date of incident. 7. In Jugendra Singh Vs. State of U.P. 2012 AIR SCW 3170, the Hon'ble Supreme Court observed thus: "17. To appreciate the submissions raised at the bar and to evaluate the correctness of the impugned judgment, we think it appropriate to refer to certain authorities in the filed which deal with the parameters for reversing a judgment of acquittal to that of conviction by the appellate court. 18. In Jadunath Singh and others v. State of U.P, AIR 1972 SC 116 , a three Judge Bench of this High Court held thus:- "This Court has consistently taken the view that an appeal against acquittal the High Court has full power to review that at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor, 61 Ind App 398 : AIR 1934 PC 227, and Nur Mohammad v. Emperor, AIR 1945 PC 151. These two decisions have been consistently referred to in judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals : see Surajpal Singh v. State, 1952 SCR 193 : AIR 1952 SC 52 and Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 : AIR 1961 SC 715 . 19. In Damodar Prasad Chandrika Prasad and others v. State of Maharashtra, AIR 1972 SC 622 , it has been held that once the Appellate Court comes to the conclusion that the view of the trial court is unreasonable, that itself provides a reason for interference. 19. In Damodar Prasad Chandrika Prasad and others v. State of Maharashtra, AIR 1972 SC 622 , it has been held that once the Appellate Court comes to the conclusion that the view of the trial court is unreasonable, that itself provides a reason for interference. The two Judge Bench referred to the decision in State of Bombay v. Rusy Afistry, AIR 1960 SC 391 , to hold that if the finding shocks the conscience of the Court or has disregarded the norms of legal process or substantial and grave injustice has been done, the same can be interfered with. 20. In Shivaji Sahebrao Bobade and another v. State of Maharashtra, AIR 1973 SC 2622 , the three-Judge Bench opined that there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize the probative material de novo, informed, however, by the weighty though that the rebut table innocence attributed to the accused having been converted into an acquittal the homage of our jurisprudence owes to individual liberty constrains the higher court not to upset the finding without very convincing reasons and comprehensive consideration. This Court further proceeded to state that the cherished principles of golden thread to prove beyond reasonable doubt which runs through the wave of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. Emphasis was laid on the aspect that a balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish the marginal innocents. 21. In State of Karnataka v. K. Gopala Krishna, AIR 2005 SC 1014 : 2005 AIR SCW 949, it has been held that where the findings of the Court below are fully unreasonable to perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the Appellate Court will be justified in setting aside such an order of acquittal. If two views are reasonably possible and the view favouring the accused has been accepted by the court below, that is sufficient for upholding the order of acquittal. If two views are reasonably possible and the view favouring the accused has been accepted by the court below, that is sufficient for upholding the order of acquittal. Similar view was reiterated in Ayodhya Singh v. State of Bihar and others, 2005(9) SCC 584 : AIR 2005 SC 1022 : 2005 AIR SCW 975. 22. In Anil Kumar v. State of U.P., 2004(13) SCC 257 : AIR 2004 SC 4662 : 2004 AIR SCW 5238, it has been stated that interference with an order of acquittal is called for if there are compelling and substantial reasons such as where the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated. 23. In Girija Prasad (dead) by LRs. v. State of MP., 2007(7) SCC 624 : AIR 2007 SC 3106 : 2007 AIR SCW 5589, it has been observed that in an appeal against acquittal, the Appellate Court has every power to re-appreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is a presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial court, but that is not the end of the matter. It is for Appellate Court to keep in view the relevant principles of laws of re-appreciate and reweigh as a whole and to come to its own conclusion in accord with the principle of criminal jurisprudence. 24. In State of Goa v. Sanjay Thakran, 2007(3) SCC 755 : AIR 2007 SC (Supp) 61 : 2007 AIR SCW 2226, it has been reiterated that the Appellate Court can peruse the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse. 25. In State of U.P. V. Ajai Kumar, AIR 2008 SC 1269 : 2008 AIR SCW 1303, the principles stated in State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573 : AIR 2004 SC 4520 : 2004 AIR SCW 4321, were reiterated. 25. In State of U.P. V. Ajai Kumar, AIR 2008 SC 1269 : 2008 AIR SCW 1303, the principles stated in State of Rajasthan v. Sohan Lal, (2004) 5 SCC 573 : AIR 2004 SC 4520 : 2004 AIR SCW 4321, were reiterated. It is worth noting that in the case of Sohan Lal, it has been stated thus: “This Court repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal." 26. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : AIR 2007 SC (Supp) 111 : 2007 AIR SCW 1850, this Court held as under :- "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate 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 questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "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 emphasise 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. 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 emphasise 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 is 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 disturb the finding of acquittal recorded by the trial court." 27. In S. Ganesan v. Rama Raghuraman and others, (2011) 2 SCC 83 : AIR 2011 SC (Cri) 419, one of us (Dr. B.S. Chauhan. J), after referring to the decision in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, (2010) 13 SCC 657 : AIR 2011 SC (Cri) 69 : 2010 AIR SCW 7049, considered various aspects of dealing with a case of acquittal and after placing reliance upon earlier judgments of this Court, particularly in Balak Ram v. State of U.P., (1975) 3 SCC 219 : AIR 1974 SC 2165 , Budh Singh v. State of U.P., (2006) 9 SCC 731 : AIR 2006 SC 2500 : 2006 AIR SCW 2686, Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535 : AIR 2008 SC 2066 : 2008 AIR SCW 2824, Aruvelu v. State, (2009) 10 SCC 206 : AIR 2009 SC (Supp) 2887 : 2009 AIR SCW 6593 and Babu v. State of Kerala, (2010) 9 SCC 189 : AIR 2011 SC (Cri) 809 : 2010 AIR SCW 5105, held that unless there are substantial and compelling circumstances, the order of acquittal is not required to be reversed in appeal. Similar view has been reiterated in Ranjitham v. Basvaraj & Ors., (2012) 1 SCC 414 : AIR 2012 SC (Cri) 803 : 2012 AIR SCW 2202 and State of Rajasthan v. Shera Ram @ Vishnu Dutta, (2012) 1 SCC 602 : AIR 2012 SC 1 .” 8. Now, we shall examine whether on the date of incident the age of the prosecutrix was below 16 years. 9. The prosecutrix (PW-7) deposed that her age was 14 years. Sadhuram (PW-9) who is father of the prosecutrix (PW-7) deposed that the age of the prosecutrix (PW-7) was 14 years and 3 months on the date of incident. He further deposed that he submitted the birth certificate (Ex.P-13) of the prosecutrix (PW-7). Ex.P-13 reveals that the date of birth of the prosecutrix (PW-7) is 19-6-1988. 10. In Alamelu and another Vs. State represented by Inspector of Police (2011) 2 SCC 385 , the Hon'ble Supreme Court observed as follows: "40. The transfer certificate has been issued by a government school and has been duly signed by Headmaster therefore, it would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court held that - the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry case, though PW-10 admitted to issue the transfer certificate (Ex.P/15) on the basis of entry in the school register, but the entry in the school register, by which, the prosecutrix was admitted in Class-6th, itself was not proved." 11. Sub-Inspector A. Kujur (PW-12) deposed that he had seized school certificate of the prosecutrix (PW-7) vide Ex.P-10. Sadhuram (PW-9) deposed that he gave school certificate to the police. But, in the instant case, primary school certificate was not proved by the prosecution. Sadhuram (PW-9) produced birth certificate issued by Registrar (Births and Deaths). The date of birth mentioned in Ex.P-13 would have no evidentiary value unless the person, who made the entry or gave the date of birth is examined. Mere producing Ex.P13 itself is not sufficient to prove the age of the prosecutrix (PW-7). Dr. Sadhuram (PW-9) produced birth certificate issued by Registrar (Births and Deaths). The date of birth mentioned in Ex.P-13 would have no evidentiary value unless the person, who made the entry or gave the date of birth is examined. Mere producing Ex.P13 itself is not sufficient to prove the age of the prosecutrix (PW-7). Dr. N. Bajpai (PW-6) deposed that on the basis of ossification test, the age of the prosecutrix (PW-7) was above 16½ years and below 18 years. On the basis of ossification test, range of error may be upto 3 years on either side. In the instant case, Dr. N. Bajpai (PW-6) deposed that on the basis of ossification test, the age of prosecutrix (PW-7) was 16½ to 18 years. In this manner, if we add 3 years towards upper side, the age of the prosecutrix (PW-7) would come to above 18 years. After due appreciation of the above evidence, we are of the view that the prosecution could not establish that the prosecutrix (PW-7) was a minor. Therefore, there is no infirmity in the finding recorded by the learned Additional Sessions Judge regarding the age of the prosecutrix (PW-7). 12. The prosecutrix (PW-7) deposed that on the date of incident, she had gone to watch video. After half an hour, she came back to her house where her father and maternal uncle were sitting. Then she went to byara for urination. After urination, when she stood up, respondent Dipak Kumar caught her and dragged her to his house. She further deposed that respondent Dipak Kumar threw her on the cot and committed forcible intercourse with her. 13. Now, we shall examine whether the evidence of prosecutrix (PW7) is cogent, convincing and reliable? 14. Prosecutrix (PW-7) deposed that respondent Dipak Kumar flung her on the cot and respondent Kiran Bai closed the door. She further deposed that when respondent Dipak Kumar dragged her in his house, at that time his mother respondent Kiran Bai was also present in the house. Dashrath (PW-8) deposed that at about 9-10 P.M. the prosecutrix (PW-7) had gone towards byara for urination. When she did not return, he searched the prosecutrix, thereafter he went to the house of the respondents. He knocked the door. After 10-15 minutes, respondent Kiran Bai opened the door. Prosecutrix (PW-7) was present there. 15. In Selveraj Vs. Dashrath (PW-8) deposed that at about 9-10 P.M. the prosecutrix (PW-7) had gone towards byara for urination. When she did not return, he searched the prosecutrix, thereafter he went to the house of the respondents. He knocked the door. After 10-15 minutes, respondent Kiran Bai opened the door. Prosecutrix (PW-7) was present there. 15. In Selveraj Vs. The State of Tamil Nadu (1976) 4 SCC 343 , the Hon'ble Supreme Court observed thus: "4. ......... it is difficult to believe that the appellant was so inflamed with passion as to demand sexual intercourse with the deceased who happened to be the wife of his cousin, and that too, not while she was alone, but in the presence of her husband. Even if he was mad with lust, he would not have chosen to come at this particular time, namely, 9 p.m. for making advances to the deceased, when he must have known that her husband Natesan would in all probability be at home. In any even, when Natesan came into the house, the appellant would have run away and not continued to insist that the deceased should submit to sexual intercourse with him. The entire story appears to be highly improbable and inconsistent with the ordinary course of human nature........." 16. In the instant case, when respondent Dipak Kumar committed sexual intercourse with prosecutrix (PW-7) in his house, respondent Kiran Bai, mother of respondent Dipak Kumar was present in the house. In this case too, it is difficult to believe that in presence of his mother, respondent Dipak Kumar would have committed sexual intercourse with the prosecutrix (PW-7) and it is also not probable that the mother of respondent Dipak Kumar could have allowed the respondent Dipak Kumar to commit sexual intercourse with the prosecutrix (PW-7). The prosecutrix (PW-7) deposed that Ex.D1-A to D-05 are joint photographs of respondent Dipak Kumar and her. Ghasiram Patel (DW-1) deposed that he was Sarpanch of Gram Panchayat Amera. He deposed that a village panchayat was held. Grand father of respondent Dipak Kumar told in the panchayat that the prosecutrix (PW-7) had gone to the house of respondent Dipak Kumar. In Panchayat, the prosecutrix (PW-7) told that she had gone to the house of the respondents at her own will. He deposed that a village panchayat was held. Grand father of respondent Dipak Kumar told in the panchayat that the prosecutrix (PW-7) had gone to the house of respondent Dipak Kumar. In Panchayat, the prosecutrix (PW-7) told that she had gone to the house of the respondents at her own will. Ghasiram Patel (DW-1) submitted Ex.D-22 in Police Station, Palari, in which, the prosecutrix (PW-7) has admitted that she had gone to the house of the respondents at her own will. Jai Narayan Dhritlahare (DW-2) also deposed in similar fashion. Jai Narayan Dhritlahare (DW-2) further deposed that Sadhuram (PW-9) went to the house of the respondents and took prosecutrix (PW-7) back there from. Respondent Kiran Bai called a village panchayat and Ex.D-22 was prepared in the said panchayat. 17. Learned Additional Sessions Judge held in paragraph 38 of the impugned judgment that the prosecution has utterly failed to prove that the prosecutrix (PW-7) was subjected to forcible sexual intercourse by respondent Dipak Kumar and he further held that the prosecutrix (PW-7) was a consenting party for the sexual intercourse. 18. We have carefully examined the entire evidence of prosecutrix (PW7) and also the documents Ex.D-1A to D-5, letters Ex.D-6 to D-14 and Ex.D-22 proved by the defence. After going through the entire material available on record, we are of the view that the learned Additional Sessions Judge was fully justified in not accepting the testimony of the prosecutrix (PW-7) for holding that she was subjected to forcible intercourse by respondent Dipak kumar and respondent Kiran Bai instigated or abated respondent Dipak Kumar for committing sexual intercourse with prosecutrix (PW-7). Accordingly, learned Additional Sessions Judge acquitted respondent Dipak Kumar of the charges framed under Sections 342, 376(1) and 506 IPC and also acquitted respondent Kiran Bai of the charges framed under Sections 342, 376(1) read with Section 109, 376(1) read with Section 114 IPC. 19. We have also gone through the entire evidence available on record with a view to find out as to whether the view of the learned Additional Sessions Judge was perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reason to interfere with the judgment of acquittal. 19. We have also gone through the entire evidence available on record with a view to find out as to whether the view of the learned Additional Sessions Judge was perverse or otherwise unsustainable. After going through the entire evidence available on record, we do not find any compelling and substantial reason to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing material have been eliminated in the process of appreciation. 20. For the foregoing reasons, we do not find any infirmity in the judgment of acquittal recorded by the learned Additional Sessions Judge. The appeal filed by the State against the judgment of acquittal is liable to be and is hereby dismissed. Appeal Dismissed.