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2012 DIGILAW 674 (HP)

State of Himachal Pradesh v. Puran Chand

2012-10-04

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Deepak Gupta, J 1. This appeal by the State is directed against the judgment dated 6.9.2004 delivered by the learned Sessions Judge, Kullu in Sessions Trial No. 78 of 2003, whereby he acquitted the accused of having committed offences punishable under Sections 376 and 302 of IPC. 2. The prosecution case, in brief, is that the accused had enticed the prosecutrix and committed sexual intercourse with her by giving her false allurement that he would marry her. A baby boy was born to the prosecutrix from the loins of the accused. The accused took the child from the prosecutrix on the pretext that he would place the child in some orphanage but actually murdered the child by throwing the child in the river Beas from the bridge going from Bhuntar to Manikaran. 3. At the outset, we may notice that there are number of major discrepancies in the dates and translations of the testimonies of the witnesses. The Judicial Officer concerned has not properly translated the version given by the witnesses. He has also not given the correct dates and therefore, we have been compelled to go through the original record in Hindi. We would not like to say much in the matter but we will be failing in our duty if we do not observe that all the mistakes are such which help the accused and go against the prosecution. Since the judicial officer has retired, we do not want to say anything further in the matter. 4. On 11.1.2002, the prosecutrix PW-13 lodged a detailed report with Police Station, Kullu. According to this report, she after obtaining some training from ITI, Bilaspur worked as an Apprentice in Aditya Industry, Shamshi. She took on rent a quarter in the house of one Shri Nath Ram Chandel along with another girl named Kiran who was also employed in Kullu. Kiran got married to Des Raj, god brother of the prosecutrix. Des Raj was friendly with the accused since both of them were working in the same firm. According to the complainant the accused used to visit her quarter firstly when she was residing in the house of Nath Ram and developed intimacy with her. Thereafter, the prosecutrix shifted her accommodation to the house of one Pandit Amar Nath. The accused used to visit her there also. 5. According to the complainant the accused used to visit her quarter firstly when she was residing in the house of Nath Ram and developed intimacy with her. Thereafter, the prosecutrix shifted her accommodation to the house of one Pandit Amar Nath. The accused used to visit her there also. 5. According to the prosecutrix she first had sexual relation with the accused on the day of Diwali in the year 2001 and thereafter she and the accused had sex on a number of occasions as a result of which she became pregnant. After the prosecutrix suspected that she had become pregnant she told the accused about this fact who in the month of May 2002 took her to Beas Hospital, Kullu for getting her aborted. The doctor declined to abort the child on the ground that the pregnancy was in an advanced stage. When the prosecutrix was about to deliver a child, the accused accompanied the prosecutrix and took her to a hospital at Mandi and got her admitted there on 21.11.2002, but her name was wrongly entered as Sita Devi. The prosecutrix gave birth to a male child on 22.11.2002 and next day on 23.11.2002 she was discharged from the hospital. 6. After the prosecutrix was discharged from the hospital the accused brought the prosecutrix along with the newly born child to Aut where they stayed in hotel Shalimar till 26.11.2002. On 26.11.2002 both the prosecutrix and the accused along with the child left Aut in the evening and got down at Sharabai near Bhuntar. The prosecutrix went to meet her cousin’s husband and got some money from him. She told him about the occurrence. She stayed the night at her cousin’s house. 7. Next day on 27.11.2002 she rang up Puran Chand and he asked her to meet him near Bhuntar bridge but he did not come there. She then went to Kullu and rang up Charan Dass a friend of Puran Chand. She asked him to convey a message to Puran Chand that she would meet Puran Chand near Vaishnu Mata Temple. Puran Chand came there in the afternoon. They both went towards Mandi side and sat on the road side. Puran Chand told her that they should keep the child in an orphanage for a few days where two of his class fellows were working. They would look after the child. Puran Chand came there in the afternoon. They both went towards Mandi side and sat on the road side. Puran Chand told her that they should keep the child in an orphanage for a few days where two of his class fellows were working. They would look after the child. After things become normal, he would marry the prosecutrix and bring back the child. The prosecutrix agreed to this. Both the prosecutrix and the accused then returned to Kullu. 8. She asked the accused that they should get a photograph of the child taken before the child was taken to an orphanage. They both went to the shop of a photographer in Akhara Bazar near the petrol pump. The photographer said that since the child was sleeping they should come back after sometime when the child was awake and then get the photograph taken. The prosecutrix and the accused sat in a bus and then went to Shamshi along with the child. The accused took the child and again assured the prosecutrix that he would ensure that the child is put in some orphanage. 9. Next day Puran Chand came to her quarter and when she asked him about the child then he first told her that he had left the child at Nagwain and then changed his version and told her that he had left the child at Mandi. When she insisted that she should be told the truth the accused told her that he had left the child in Hanogi Mata Temple. She then took Puran Chand and went to Hanogi Mata Temple and asked the Priest as well as the person running the canteen at the temple if they had seen any child who had been left there by some person. Both replied that they had not seen any child. The prosecutrix then became suspicious that the accused was not telling her the truth and that he had hidden the child somewhere. She then took Puran Chand and went to Talyahar to an orphanage but again could not find the child. Then she suspected that either the child had been given to some person or may have been killed. When she confronted the accused he told her that she was a Scheduled Caste and he would not marry her. On this basis FIR Ext. PW-13/A was registered and investigation was carried out. Then she suspected that either the child had been given to some person or may have been killed. When she confronted the accused he told her that she was a Scheduled Caste and he would not marry her. On this basis FIR Ext. PW-13/A was registered and investigation was carried out. After investigation, the accused was charged with having committed the offences aforesaid. The learned trial Court acquitted the accused. Hence, this appeal by the State. 10. Mr. Vivek Thakur, learned Additional Advocate General, submits that the judgment of the learned trial Court is perverse, against the evidence and is liable to be set aside. Mr. Vivek Thakur also submits that the accused is definitely guilty of murdering the child, that there is more than sufficient material on record to show that the accused and the prosecutrix had sexual relations and that the prosecutrix delivered a child at Mandi. Thereafter the prosecutrix and the accused lived together at the hotel at Aut and on the asking of the accused, the prosecutrix handed over the child to him. Mr. Vivek Thakur further submits that it was for the accused to explain what happened to the child thereafter. 11. On the other hand, Mr. Ajay Kumar, learned Senior Counsel appearing for the accused, submits that the judgment of the learned trial Court is absolutely correct. He submits that there is not an iota of proof against the accused. According to him the prosecution has failed to prove that there were any relations between the accused and the prosecutrix. It is not proved that any child was born to the prosecutrix since none has been able to identify Sita Devi and the prosecutrix to be the same person. He further submits that the owner of the hotel has not identified the prosecutrix or the accused. According to Mr. Ajay Kumar there is great delay in lodging the FIR and that there is no explanation by the prosecutrix for delay in lodging the FIR. 12. We have gone through the entire evidence. First of all we may summarize the law relating to the powers of the Appellate Court under the Code of Criminal Procedure. The Apex Court in Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415 has laid down the principles relating to the powers of the Appellate Court while dealing with appeals against acquittal. First of all we may summarize the law relating to the powers of the Appellate Court under the Code of Criminal Procedure. The Apex Court in Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415 has laid down the principles relating to the powers of the Appellate Court while dealing with appeals against acquittal. The Apex Court held as follows:- “15. Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. 16. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.” Thereafter the Apex Court culled out the following principles:- “42. 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 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. 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. 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.” 13. We are examining the present case after taking into consideration the fact that we are exercising appellate powers and therefore, we can interfere only if the judgment is perverse or wholly untenable. 14. The prosecutrix was examined as PW-13. She fully supported her version as given in the complaint set out in detail hereinabove. It is not necessary to repeat her entire statement, but her case is that after doing her training and apprenticeship she finally started working in a floriculture company at Shamshi near Kullu and started residing in the premises which she had taken on rent from one Nath Ram. The accused along with her god brother Des Raj used to visit her in the house of Nath Ram and later in the house of Pandit Amar Nath. He expressed a desire of marrying the prosecutrix despite the fact that she belonged to a Scheduled Caste. During Diwali days she and the accused developed intimate physical relations. According to her she consented to have sex with the accused since she was under the impression that he would marry her. These sexual relations continued for a number of days. When the prosecutrix missed her menstrual period and also had vomiting she suspected that she may be pregnant. Thereafter she disclosed this fact to the accused who took her to the Beas Hospital, Kullu. These sexual relations continued for a number of days. When the prosecutrix missed her menstrual period and also had vomiting she suspected that she may be pregnant. Thereafter she disclosed this fact to the accused who took her to the Beas Hospital, Kullu. The doctor refused to abort the child since the pregnancy was about 3 to 4 months old. The prosecutrix stayed in the rented quarter of Amar Nath and did not visit anyone. The accused during this period used to stay with her in the house of Amar Nath. On 20th November, 2002 she developed pain in her abdomen and thereafter the accused took her to the hospital at Mandi on 21.11.2002 where she was admitted and there the accused recorded her name as Sita Devi and told her to respond to this name when called by any doctor or nurse. She delivered a male child on 22.11.2002 and was discharged from the hospital on 23.11.2002. 15. Thereafter, she and the accused went to Aut where they stayed at Shalimar Hotel. The accused got his name entered as Prem from Barua. On 26.11.2002 they left the hotel. The accused left the prosecutrix at Sarabhai and went away to arrange some money. The prosecutrix went to the house of her cousin where she met her cousin’s husband PW-11 Prem Lal and asked him for money. Prem Lal gave her Rs.150/-. She telephoned the accused who asked her to meet him at Bhuntar Bridge. When she went to Bhuntar Bridge the accused did not turn up. The prosecutrix came to Kullu and made a telephone call to the accused and the accused met her near the Vaishnu Mata Temple. The accused took her by bus towards Manali and told her that they should keep the child somewhere and after things are normal they could bring back the child. Firstly, the prosecutrix did not agree but on repeated assurances of the accused that the children were being looked after properly in an orphanage at Nagwain she agreed to the proposal. Then both the accused and prosecutrix returned to Kullu. The prosecutrix asked him to get a photograph of the child taken. They went to the shop of a photographer near the petrol pump at Akhara Bazar Kullu. The child was asleep and hence the photographer asked them to bring the child after some time. Then both the accused and prosecutrix returned to Kullu. The prosecutrix asked him to get a photograph of the child taken. They went to the shop of a photographer near the petrol pump at Akhara Bazar Kullu. The child was asleep and hence the photographer asked them to bring the child after some time. Then both the prosecutrix and the accused returned to Shamshi. The prosecutrix got down at Shamshi and the accused took the child with him after telling the prosecutrix that he would drop the child in the orphanage at Nagwain. 16. Next day, the accused came back and first said that he had left the child at Mandi and then at Nagwain. When the prosecutrix asked the accused to swear where he had left the child then he told her that he had left the child at Hanogi Mata Temple. On 29.11.2002 the prosecutrix and the accused went to Hanogi Mata temple. The prosecutrix enquired about the child and the Pujari of the Temple as well as the person running the canteen informed her that no child had been left by any person. The prosecutrix asked the accused to marry her but he flatly refused as she was a Scheduled Caste. According to the prosecutrix though she suspected that the accused had hidden the child but she did not think that the accused could kill the child. Thereafter she reported the matter to the police in January 2003. She also states that after the accused was arrested she along with the police and the accused visited the shop of the photographer, the Hanogi Mata Temple and the Hotel at Aut. 17. The prosecutrix has been subjected to lengthy examination and she has candidly admitted that the accused did not force her to have physical relationship with him. A suggestion was put to her in cross-examination that she insisted that the accused should marry her and when he refused to do so she had planted a false case against the accused. Most importantly, in her cross-examination it has not been suggested that she did not have sexual relations with the accused. She has also not been cross-examined on the aspect that when she was living in the house of Pandi Amar Nath, the accused was residing with her. 18. Most importantly, in her cross-examination it has not been suggested that she did not have sexual relations with the accused. She has also not been cross-examined on the aspect that when she was living in the house of Pandi Amar Nath, the accused was residing with her. 18. As far as the charge of rape is concerned, in view of the statement of the prosecutrix herself, the said charge cannot be said to be proved because she herself admits that she was a consenting party to the sexual acts. However, one thing is clear that she and the accused had a long standing relationship, both physical and emotional, and the accused was virtually residing with her in the house of Amar Nath. 19. It has been urged by Mr. Ajay Kumar, learned senior counsel, that Amar Nath and Nath Ram the landlords have not been examined and this is fatal to the prosecution. We are unable to accept this version because there is no cross-examination to the prosecutrix that she was not residing in the house of Nath Ram or in the house of Amar Nath. In fact though the prosecutrix has made a detailed statement but there is no cross-examination that the accused did not have any sexual relations with her or was not visiting her. Surprisingly in this case for reasons best known to the prosecutrix, Kiran and Des Raj were not examined initially and only after the statement of the accused had been recorded under Section 313 Cr.P.C. that the prosecutrix herself moved an application to the learned trial Court praying that Des Raj and Kiran be examined. They were examined as PW-19 and PW 21. 20. As far as PW-19 is concerned, he admits that his wife PW-21 and the prosecutrix were residing in separate rooms, firstly in the house of one Shri Chadha known as Chadha Niwas. According to him the prosecutrix and the accused were on talking terms with each other and used to stroll together but he could not state what was the exact nature of the relationship. According to him the prosecutrix and the accused were on talking terms with each other and used to stroll together but he could not state what was the exact nature of the relationship. His version is that he and his wife left for Shimla and sometime in October 2003 they came back to Shamshi to meet the prosecutrix and at that time she told them that she had delivered a child out of the loins of the accused in Government Hospital, Mandi but the accused had taken the child and not brought him back. 21. As far as PW-21 is concerned, she has supported the case of the prosecutrix and according to her the accused used to visit the prosecutrix and they used to sit for hours together in their room and some time the room used to be bolted from inside. According to her, thereafter she and her husband shifted their residence to some other place but still the accused used to visit the house of the prosecutrix. In January 2002 she and her husband shifted to Shimla. Her version is that in the end of December 2002 she and her husband came to Kullu and met the prosecutrix who disclosed that she had given birth to a male child and that the child was taken by the accused. The prosecutrix also informed PW-21 that the child was missing. According to her in the first week of January 2003 they met the accused and asked him what had happened to the child and accused Puran Chand told that the child had a natural death but he had concealed this fact from PW-13. 22. At the outset we may notice that the Public Prosecutor as well as the learned Judge were negligent in discharging their duties. If the prosecutrix herself had not been vigilant about her case and had not filed the application for examining these witnesses they would never had been examined. Be that as it may, the statements of the prosecutrix and these two witnesses prove beyond doubt that the accused and the prosecutrix had developed sexual intimacy. 23. The main issue is whether the statement of the prosecutrix should be believed or not. We must again emphasize that the prosecutrix is a victim of the crime and should be treated as a victim and not as a culprit. 23. The main issue is whether the statement of the prosecutrix should be believed or not. We must again emphasize that the prosecutrix is a victim of the crime and should be treated as a victim and not as a culprit. Here we are dealing with a case where a young lady develops relation with another young man. She has sex with the person, which is against the norms of society. A child is born and is missing. According to the prosecutrix the child was taken by the accused. The accused has not specifically denied the fact that he had relations with the prosecutrix. Why should this young girl put her whole reputation at stake if nothing had happened? In Indian society it is very difficult for a woman to live as a single mother and especially as a deserted single mother whose child has disappeared. If there were no relations between the accused and the prosecutrix why should she lodge a false complaint against him? There is no prior enmity and the only explanation given by the accused for the prosecutrix deposing against him is that when he refused to marry her she fabricated a false case against him. It is obvious that the prosecutrix wanted to marry the accused only because they had developed some relationship with him. She would not want to marry a total stranger. Therefore, this suggestion by itself clearly indicates that there were relations both physical and emotional between the prosecutrix and the accused. 24. As discussed above, the main issue is should the statement of the prosecutrix is to be believed. In our view the statement of the prosecutrix inspires confidence. It has a ring of truth and should be believed. 25. It has been urged that there is no explanation as to why there is a delay of almost 43 days in lodging the FIR. At the outset we may state that mere delay in lodging the FIR is not fatal to the prosecution. The only rule is that in case of delay either there should be satisfactory explanation for the delay or in such an eventuality the statements of the prosecution witnesses should be scrutinized with greater care and caution. At the outset we may state that mere delay in lodging the FIR is not fatal to the prosecution. The only rule is that in case of delay either there should be satisfactory explanation for the delay or in such an eventuality the statements of the prosecution witnesses should be scrutinized with greater care and caution. Reference in this behalf may be made to the judgment of the Apex Court in State of H.P. vs. Gian Chand (2001) 6 SCC 71 , wherein the Apex Court held as follows:- “12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.” 26. In the present case, we should put ourselves in the shoes of the prosecutrix. She had delivered a child about a week earlier. The child was taken away by her boy-friend. She could not be certain that the child had been killed. Even if the boy-friend was refusing to marry the prosecutrix she would not lodge a complaint immediately because she would be hoping that things would turn for the better and she would get her child back. It is only after a long wait and probably after PW-19 and PW-21 intervened that she lost all hope and filed the complaint. What would the prosecutrix gain by not reporting the incidence to the police immediately? This is not a case where she could create fresh evidence by delaying the matter. Even though we have held that we believe the statement of the prosecutrix, we are not convicting the accused on the basis of her statement alone but we are clearly of the view that the statement of the prosecutrix is corroborated on all material particulars by a number of witnesses. 27. Even though we have held that we believe the statement of the prosecutrix, we are not convicting the accused on the basis of her statement alone but we are clearly of the view that the statement of the prosecutrix is corroborated on all material particulars by a number of witnesses. 27. PW-1 doctor Anjali Soni stated that she examined one Sita Devi, wife of Puran Chand, who was admitted in the Gynae Ward of Zonal Hospital, Mandi on 21.11.2002. The said Sita Devi delivered a male child on 22.11.2002 and was discharged on 23.11.2002. Similar is the statement PW-20 Chetna Devi, Staff Nurse, Zonal Hospital, Mandi. True it is that both these witnesses could not identify the prosecutrix as the same lady who had given birth to a male child in the Zonal Hospital, but this is natural. A doctor or a nurse cannot be expected to remember the name and face of each and every patient they examine unless there are some exceptional facts of a case. But the statements of these two witnesses prove that one Sita Devi entered as a wife of Puran Chand was admitted on 21.11.2002 in Zonal Hospital, Mandi, delivered a child on 22.11.2002 and was discharged from the hospital on 23.11.2002. 28. The next important statement is of PW-3 Bhushan Kumar, owner of Shalimar Guest House at Aut. He states that on 23.11.2002 vide entry made in his register one Prem Singh resident of Burua Manali stayed in his Guest House along with one lady till 26.11.2002. He also states that the said persons were having a small baby with them. Most importantly, this witness states that after about 3-4 months one lady and gentleman came with the police and this lady and gentleman were the same persons who had stayed in his guest house from 23.11.2002 to 26.11.2002. No doubt, he says that he cannot state clearly whether the accused and the prosecutrix are the couple who stayed in his guest house but he has clearly stated that the couple who came with the police were the persons who stayed in his guest house. From the statement of the Investigating Officer and the statement of the prosecutrix and other police officials it is apparent that after the accused was arrested he along with the prosecutrix was taken to this guest house. From the statement of the Investigating Officer and the statement of the prosecutrix and other police officials it is apparent that after the accused was arrested he along with the prosecutrix was taken to this guest house. The witness is not telling a lie because one cannot expect the witness to remember the names and faces of each and every person who stayed in his guest house. However, what stands proved is that one young couple with a small child stayed in his guest house from 23.11.2002 to 26.11.2002 and that when the police visited his guest house after a few months the said couple was accompanying the police. 29. PW-4 Chamel Singh runs a canteen at the Hanogi Mata Temple. According to him the prosecutrix had come crying to the Hanogi Mata temple some time in the month of November 2002 asking if some child had been abandoned at the temple. He told the prosecutrix that no abandoned child had been left at Hanogi Mata Temple. He also states that in January 2003 the prosecutrix along with the police had again come to him to meet him at Hanogi Mata Temple. 30. PW-6 Ramesh Chander is a photographer who runs a shop under the name and style of Volga Studio in Akhara Bazar Kullu. He states that in January 2003 some police officials accompanied by some other persons had come to his shop and asked him whether any couple had come to his shop in the month of November 2002 to get the photograph of a child taken. He stated that in fact a small child was brought by a couple but since the child was asleep, he did not click the photograph. He also could not identify the couple who had come to his shop, but his statement is clear that he did not click the photograph since the small child was asleep. 31. PW-11 Prem Lal is married to the first cousin of the prosecutrix. According to him on 26.11.2002 the prosecutrix came to his house with a small child of a very tender age. He enquired why she had come to his quarter so late at night with a small child. The prosecutrix informed him that she had got married with one Puran Chand and asked for some money from him. She stayed the night in his house. He enquired why she had come to his quarter so late at night with a small child. The prosecutrix informed him that she had got married with one Puran Chand and asked for some money from him. She stayed the night in his house. Next morning he gave her Rs.150/- and told her not to visit him in future. 32. PW-10 doctor Neena Lal examined the prosecutrix on 11.1.2003 after she lodged a complaint. According to her opinion, the prosecutrix had recently delivered a child and one of the reasons given is that milk secretion was present in both breasts. In cross-examination she denied the suggestion that milk secretion is possible in virgins, old women, etc. 33. How could the prosecutrix have known that one Sita Devi was admitted in the hospital at Mandi on 21.11.2002, delivered a male child on 22.11.2002 and was discharged on 23.11.2002? How could she have known that the name of this lady was entered as Sita Devi wife of Puran Chand? The answer to these questions is simple. She could have only known these facts if either she herself was the lady who was admitted in the hospital or was attending upon the said lady. 34. How could the prosecutrix have known that a young couple along with a small child resided at Shalimar Guest House from 23.11.2002 to 26.11.2002? She could have known this fact only if she had stayed there. The version of the prosecutrix is supported by the owner of the hotel who clearly states that when the police came, the couple which was accompanying the police was the same who had stayed at his hotel a few months earlier. In Court his statement was recorded after more than a year and human memory being what it is he could not identify the prosecutrix in Court. 35. How could the prosecutrix have known that a couple with a small child had visited the photographer who had said that since the child was asleep they should come back later and get the photograph clicked? This could only happen if she was the lady accompanying the child. Though these witnesses have not identified the prosecutrix and the accused as the couple, they fully corroborate the version of the prosecutrix, with regard to the visits of a couple. 36. This could only happen if she was the lady accompanying the child. Though these witnesses have not identified the prosecutrix and the accused as the couple, they fully corroborate the version of the prosecutrix, with regard to the visits of a couple. 36. During the course of trial the specimen handwriting of the accused was taken and the same was sent to the Forensic Science Laboratory for comparison with the entries in the register of Shalimar Guest House. PW-5 Dr. Meenakshi Mahajan stated that the admitted handwriting of the accused and the questioned writing on the register is one of the same person. The learned trial Court discarded this piece of the evidence on the ground in view of the judgment of the Apex Court in Sukhbinder Singh vs. State of Punjab, 2003 Crimes (ii) 304 wherein it was held that since the Magistrate could not compel a witness to furnish his specimen handwriting this evidence could not be taken into consideration. For the purpose of this case, following the aforesaid judgment we are not taking this piece of evidence into consideration but we are clearly of the view that the remaining evidence is sufficient to convict the accused. The learned trial Court also acquitted the accused mainly on the ground that he had not been identified by any of the witnesses referred to above. As discussed above, in our opinion the mere fact that the accused and the prosecutrix were not identified in Court would not detract from that portion of the testimony of these witnesses which totally corroborates the version of the prosecutrix. 37. The judgment of the learned trial Court is totally perverse inasmuch as the learned trial Court has treated the statement of the prosecutrix like the statement of a tainted witness. The learned trial Court forgot that this statement is of a woman who not only had a failed love affair but had also lost her child. There is total insensitivity on the part of the learned trial Court in appreciating the evidence. There is no discussion as to why the statement of the prosecutrix should not be believed. Therefore, we are constrained to observe that the judgment is perverse. 38. Another ground which weighed with the learned trial Court was the inconsistency in the statement of PW-16 SI Tameshwar Singh and the statement of PW17 Dy. S.P. Prem Chand. There is no discussion as to why the statement of the prosecutrix should not be believed. Therefore, we are constrained to observe that the judgment is perverse. 38. Another ground which weighed with the learned trial Court was the inconsistency in the statement of PW-16 SI Tameshwar Singh and the statement of PW17 Dy. S.P. Prem Chand. According to PW-16 on 13.1.2003 PW-17 handed over the case file to him. He also states that on 3.2.2003 he recorded the statement of Prem Singh witness and thereafter handed over the investigation to PW-17. Therefore, the learned trial Court drew the conclusion that from 13.1.2003 till 3.2.2003 the case file remained with PW-16 and therefore, it cannot be believed that the statements of the accused Ext. PW-12/A and Ext. PW-12/B purportedly made under Section 27 of the Evidence Act were recorded by Dy. S.P. Prem Chand on 14.1.2003. No questions were put to PW-16 and PW17 in court and if such questions had been put then they could have given some explanation. The explanation is not far to see since from the original record of the police i.e. the zimni sheets we find that in fact the record was handed over on 14th January 2003 and not on 13th January, 2003. 39. It is urged by Mr. Ajay Kumar, learned senior counsel that the prosecution has failed to prove the case against the accused beyond reasonable doubt. It is submitted that suspicion howsoever great cannot take place of proof. We are of the considered view that the rule which requires the prosecution to prove the guilt of the accused beyond reasonable doubt cannot be taken to such an extreme that it would virtually become impossible to convict any criminal. 40. In Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10 SCC 681 the Apex Court held that where some facts are in the personal knowledge of the accused it is for the accused to explain what happened. Taking note of Section 106 of the Evidence Act, the Apex Court held that though the pristine rule is that the burden of proof is on the prosecution to prove the guilt of the accused but this rule should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The Court can draw reasonable presumption on the basis of evidence led before it. The Court can draw reasonable presumption on the basis of evidence led before it. In cases where there are no eye witnesses, presumptions have to be drawn and the doctrine of presumption coexists with the rule that burden of proof is on the prosecution. 41. In Kirkan’s case (supra) the Apex Court after examining a number of cases went on to hold as follows:- “20. In Ram Gulam Chaudhary v. State of Bihar the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.” 42. The Apex Court in State of West Bengal vs. Mir Mohd. Omar (2000) 8 SCC 382 held that if the traditional rule that burden of proof is on the prosecution is applied in a pedantic manner, the offenders of serious offences would be the major beneficiaries and society would be the causality. Therefore, once the prosecution proves certain facts the Court may be entitled to raise presumption from such facts. The Apex Court went on to hold as follows:- “33. Therefore, once the prosecution proves certain facts the Court may be entitled to raise presumption from such facts. The Apex Court went on to hold as follows:- “33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.” 43. In Krishnan and another v. State (2003) 7 SCC 56 , the Apex Court considered the question as to what is meant by the phrase “proof beyond reasonable doubt”. The pertinent observations of the Apex Court are as follows:- “22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to `proof' is an exercise particular to each case. Referring to/of probability amounts to `proof' is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says : (See "The Mathematics of Proof II" : Glanville Williams : Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342). “The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather then innocent people who make confession, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other." 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.” 44. The latest judgment brought to our notice in this regard is in the case of Iqbal Moosa Patel v. State of Gujarat, (2011) 2 S`CC 198, wherein the Apex Court held as follows:- “23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions (1947) 2 ALL ER 272: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence `of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt.... “88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land." 24. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 where this Court has reiterated the principle in the following words: "20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209 ). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. (See Gurbachan Singh v. Satpal Singh AIR 1990 SC 209 ). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish." 45. A bare perusal of this judgment clearly shows that proof beyond reasonable doubt does not mean certainty, but only mean a very high degree of probability. Therefore, fanciful arguments or trivial issues raised for casting doubt on the evidence cannot be said to mean that the case has not been proved beyond reasonable doubt. As observed by the Apex Court, the doubt should be reasonable and not imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. The doubts which weighed with the learned trial Court were fanciful doubts. The learned trial Court, as observed earlier, did not give any reason to disbelieve the statement of the prosecutrix. In view of the discussion which we have made hereinabove, it is obvious that the prosecutrix is telling the truth and her statement is corroborated by other witnesses. Therefore, the prosecution has been able to prove the case beyond reasonable doubt. 46. In the present case, once we are convinced that the statement of the prosecutrix inspires confidence and we are also of the view that her statement is corroborated by PW-1, PW-3, PW-6 and PW-20 on all material particulars except the identification of the accused and the prosecutrix on Court. This by itself is sufficient to raise a presumption that the prosecutrix handed over her child to the accused. Thereafter, it was for the accused to explain what happened to the child but he has not given any explanation whatsoever. This by itself is sufficient to raise a presumption that the prosecutrix handed over her child to the accused. Thereafter, it was for the accused to explain what happened to the child but he has not given any explanation whatsoever. Therefore, the presumption can be raised that he has done away with the child and is guilty of having murdered the child and having committed the offence punishable under Section 302 of IPC. 47. We accordingly, set aside the judgment of the learned trial Court dated 6.9.2004 and convict the accused of having committed an offence punishable under Section 302 IPC. Bail bonds are cancelled and the accused be produced before us for being heard on the quantum of sentence on 1.11.2012. The Registry is directed to take follow up action.