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2017 DIGILAW 2758 (RAJ)

Parmeshwari Saini v. State of Rajasthan

2017-12-12

MANOJ KUMAR GARG

body2017
ORDER : Manoj Kumar Garg, J. The appellant-complainant has filed the present Criminal Appeal against the judgment dated 04.07.2013 passed by learned Chief Judicial Magistrate, Churu in criminal original case No. 474/2007 whereby the accused respondent No. 2 has been acquitted from the offence under Sections 341 & 352 IPC. 2. Brief facts of the case are that on 08.01.2007, the appellant complainant Smt. Parmeshwari filed a case for offence under Sections 341, 354 IPC in the court of Chief Judicial Magistrate, Churu against the accused-respondent No. 2 in which it has been stated that she is resident of Ward No. 23, Churu. On 07.01.2007 due to illness, she went to Dr. Dinesh Sharma and when she was coming back after taking medicines, the accused-respondent No. 2 came on his motorcycle and wrongfully restrained her way and started teasing and molested her. At that time, Ibrahim and Ganesh came there and saved the complainant from the respondent No. 2. Thereafter the respondent No. 2 ran away from there. The complainant further stated that the respondent No. 2 was chasing and teasing her from last so many days. On the same day i.e. 07.01.2007, the complainant filed the complaint before the Police Station Kotwali, Churu but the report was not registered by the Police because the respondent No. 2 was working in the Police Department. Thereafter, on the next day i.e. 08.01.2007 the complainant submitted the complaint in the court of Chief Judicial Magistrate, Churu. On the said complaint, the trial court took cognizance against the respondent No. 2 for offences under Sections 200, 202, 341, 352 IPC and summoned the respondent No. 2. 3. The trial Court framed charge against the respondent No. 2 for offence under Section 341, 352 IPC. The respondent No. 2 denied the charge and claimed to be tried. 4. The prosecution in support of its case produced three witnessed including the complainant and exhibited three documents. The statement of accused respondent No. 2 under Section 313 Cr.P.C., 1973 was recorded and two witnesses were produced in defence evidence and seven documents were exhibited. After hearing arguments of both the sides, the trial Court acquitted the accused respondent No. 2 for the offence charged against him vide judgment dated 04.07.2013. 5. The statement of accused respondent No. 2 under Section 313 Cr.P.C., 1973 was recorded and two witnesses were produced in defence evidence and seven documents were exhibited. After hearing arguments of both the sides, the trial Court acquitted the accused respondent No. 2 for the offence charged against him vide judgment dated 04.07.2013. 5. The learned counsel for the appellant-complainant argued that the Court below without going through the entire record and evidence wrongly acquitted the accused respondent No. 2 for the offence charged against him. The court below while passing the impugned order did not consider the statements of witnesses in correct perspective. It is argued that the accused respondent No. 2 wrongfully restrained the way of the appellant-complainant while she was coming back after taking medicine from Doctor and started teasing and molested her. The prosecution witnesses in their statements supported the version of the appellant complainant but the trial court on the basis of contradictions in the statements of the prosecution witnesses has acquitted the respondent No. 2. Thus the judgment of the Court below is liable to be set aside and the accused respondent No. 2 should be convicted for the offence charged against him. 6. Per contra, the learned counsel for the respondent No. 2 has vehemently argued that there is contradictions in the statements of the prosecution witnesses and after proper appreciation of the evidence on record the learned trial court has rightly acquitted the respondent No. 2, hence no interference is called from this Court in this case. 7. I have heard the learned counsel for the parties and perused the impugned judgment as also gone through the entire record. 8. From the evidence on record and also by findings arrived by the learned trial court, it appears that the learned trial court has acquitted the accused respondent on the basis of contradictions in the statements of prosecution witnesses. It was held by the learned trial court that the prosecution has failed to prove its case beyond reasonable doubt. 9. The findings given by the trial Court are perfectly justified and there is no illegality in the judgment of acquittal by the trial Court. The judgment passed by the Court below is perfect according to law and there is no illegality or infirmity in the same. 10. The Hon'ble Supreme Court in the case of Umrao v. State of Harayana and Ors. The judgment passed by the Court below is perfect according to law and there is no illegality or infirmity in the same. 10. The Hon'ble Supreme Court in the case of Umrao v. State of Harayana and Ors. Reported in AIR 2006 SC 10 Page 136 has categorically observed that "it is now well settled that if two views are possible, the appellate Court should not interfere with the judgment of acquittal passed by the Court below." 11. Recently in the judgment of the Hon'ble Supreme Court in the case of Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan reported in (2013) 5 SCC 722 , the Hon'ble Apex Court while discussing earlier judgments rendered by Apex Court, held as infra: "21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. 22. 22. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773 , this Court observed as under: "Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence". xxx 25. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 , this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt. 12. Similarly in the case of Hakeem Khan & Ors. v. State of M.P., AIR 2017 SC 1723 the Hon'ble Supreme Court has held as under : "For all these reasons, we are of the considered opinion that the High Court clearly fell in grave error in setting aside the acquittal in the present case. We have to remind ourselves that the law on reversal of acquittals is well settled and is stated in many judgments, but one of them needs to be quoted here. In Murugesan v. State, (2012) 10 SCC 383 this court went into the meaning of different expressions- "erroneous", "wrong" and "possible", and has stated the law as follows:- "33. he expressions "erroneous", "wrong" and "possible" are defined in Oxford English Dictionary in the following terms: "erroneous.- wrong; incorrect. Wrong.- (1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. Possible.-(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable. 34. he expressions "erroneous", "wrong" and "possible" are defined in Oxford English Dictionary in the following terms: "erroneous.- wrong; incorrect. Wrong.- (1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. Possible.-(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable. 34. It will be necessary for us to emphasis that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court." 13. Similarly in the case of Jose @ Pappachan v. Sub-Inspector of Police, Koyilandy & Anr. AIR 2016 SC 4581 the Hon'ble Supreme Court in para 53 has held as under: 53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertain-able by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted. 14. In view of above discussion, this Court is of the opinion that no error has been committed by the learned trial court so as to acquit the accused-respondent No. 2 for the offence under Sections 341 & 352 IPC on the basis of evidence available on record, therefore while following the aforesaid law laid down by the Hon'ble Supreme Court, the instant criminal appeal filed by the appellant-complainant lacks merits therefore dismissed.