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2021 DIGILAW 222 (UTT)

State Of Uttarakhand v. Ramlakhan

2021-04-06

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

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JUDGMENT Raghvendra Singh Chauhan, J. - Aggrieved by the judgment dated 26.08.2015, passed by the Fourth Additional Sessions Judge, Dehradun, in Sessions Trial No. 33 of 2011, whereby the learned Trial Court has acquitted Ramlakhan, the accused, of offense under Section 376 IPC, the State has filed the present appeal. 2. Briefly, the facts of the case are that on 27.07.2010, the prosecutrix (P.W. 1) submitted a written report (Ext. Ka-1) before the SHO, Nehru Colony, Dehradun, wherein she claimed that her father, Vinod Chetri, had expired in 2005. After the death of her father, her mother, Smt. Meena Chetri, started running a General Store. Subsequently, she developed an illicit relationship with her tenant, Ramlakhan, who does a business of selling glass and mirrors. She further claimed that when she came to know about this illicit relationship between the two, she tried to reason out with her mother. However, her mother threatened her, and forced her to have physical relationship with Ramlakhan. Due to her sexual exploitation by Ramlakhan, she felt so ashamed that she could not speak about it to anyone. At the instance of her mother, she was repeatedly raped by Ramlakhan. Eventually, she gathered sufficient courage to talk about this incident to the leader of the Samajwadi Party, Smt. Hema Bohra (P.W. 3). With her support, the complainant claimed that she developed sufficient courage to report this case to the Police. 3. On the basis of this report, a formal FIR, namely, FIR No. 112/2010 (Ext. Ka-9), was chalked out, and the investigation commenced. 4. During the course of the investigation, the accused, Ramlakhan, was arrested; he was put up for trial. In order to establish its case, the prosecution examined five witnesses, and submitted twelve documents. In turn, the defense examined one witness, and submitted seventy-four documents. 5. After going through the evidence produced by both the sides, by the judgment dated 26.08.2015, the learned Trial Court acquitted the accused. Hence, the present appeal filed by the State. 6. Mr. Amit Bhatt, the learned Deputy Advocate General for the State, has raised the following contentions before this Court:- Firstly, the star witness of this case is the prosecutrix (P.W. 1) herself. However, the learned Trial Court has ignored her testimony. Instead, the learned Trial Court has over-critically analyzed her testimony in order to find faults with her deposition. 6. Mr. Amit Bhatt, the learned Deputy Advocate General for the State, has raised the following contentions before this Court:- Firstly, the star witness of this case is the prosecutrix (P.W. 1) herself. However, the learned Trial Court has ignored her testimony. Instead, the learned Trial Court has over-critically analyzed her testimony in order to find faults with her deposition. Therefore, in extremely perverse manner, it has concluded that the prosecutrix is unreliable and untrustworthy witness. Secondly, the Medical Report (Ext. Ka-11) clearly indicates that the hymen of the prosecutrix was broken. This clearly is an indication that she has been subjected to sexual assault by the accused. Thirdly, according to the prosecutrix (P.W.1), once the incident was revealed to Hema Bohra (P.W. 3), she had gone to the house of the prosecutrix and had called her mother, Smt. Meena Chetri, and the accused, Ramlakhan. Admittedly, Ramlakhan had written a Mafinama (an apologetic admission made in writing) (Ext. Ka-4). Therefore, the accused had admitted his guilt. Hence, the learned Trial Court was not justified in ignoring the Mafinama. Fourthly, the testimonies of Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3) have supported the testimony of the prosecutrix (P.W. 1). In fact, Ruchi Chetri (P.W. 2) is the aunt of the prosecutrix, and Hema Bohra (P.W. 3) is an adopted aunt, who has been treated as a family member of the prosecutrix. Therefore, the learned Trial Court is not justified in ignoring their testimonies. Lastly, both through the testimonies of the witnesses, and through the documentary evidence, the prosecution had succeeded in establishing its case beyond a reasonable doubt against the accused. But, notwithstanding the cogent and the convincing evidence produced by the prosecution, the learned Trial Court has unnecessarily over-analyzed the evidence. Needlessly, the learned Trial Court has based its reasoning on technicalities, surmises and conjectures. Therefore, the impugned judgment deserves to be set aside by this Court; the accused deserves to be convicted, and sentenced by this Court. 7. On the other hand, Mr. Mukesh Singh Rawat, the learned counsel for the accused, has raised the following counter-arguments:- Firstly, the scope of interference with an acquittal order is extremely limited. An acquittal order can be set aside, if it were perverse. 7. On the other hand, Mr. Mukesh Singh Rawat, the learned counsel for the accused, has raised the following counter-arguments:- Firstly, the scope of interference with an acquittal order is extremely limited. An acquittal order can be set aside, if it were perverse. The perversity would emanate from the fact that the learned Trial Court has either ignored an evidence, which is readily available on record, or has based its reasoning on conjectures and surmises, or has misapplied the law. However, in the present case, none of these factors exist. Therefore, the judgment is not a perverse one. Hence, it should not be disturbed lightly. Secondly, the learned Trial Court has given cogent reasons for disbelieving the testimony of the prosecutrix. For, from day one the prosecutrix has not given the details of the incident either in the complaint filed by her, or in her statement recorded under Section 164 Cr.P.C., or even in her testimony before the Court. She has vaguely claimed that she was sexually exploited by the accused for four to five years at the instance of her mother. Moreover, she has given a selfcontradictory statement with regard to the reason why she was forced by her mother to subject herself to the sexual exploitation by the accused. Thirdly, on the one hand, the prosecutrix claims that she was forced to have physical relationship with the accused under threat, as neither her mother nor the accused wanted her to reveal their illicit affair to the public at large. Yet, on the other hand, in her crossexamination, she admitted that she never saw her mother and the accused in the compromising position. In fact, she learned about the illicit relationship from the people at large and from her grand-mother. If the people at large were well aware of the illicit affair of them, the statement of the prosecutrix that her mother and the accused wanted to stop her from revealing their relationship to the people at large makes no logical sense. For, the said information was public knowledge. Therefore, the very motive for coercing the prosecutrix into the alleged relationship with the accused falls apart. Fourthly, the testimony of the prosecutrix is belied by the medical evidence. Although, according to the prosecutrix, last time the accused had sexual intercourse with her on 27.06.2010, yet, according to the Pathology Report dated 27.07.2010 (Ext. Therefore, the very motive for coercing the prosecutrix into the alleged relationship with the accused falls apart. Fourthly, the testimony of the prosecutrix is belied by the medical evidence. Although, according to the prosecutrix, last time the accused had sexual intercourse with her on 27.06.2010, yet, according to the Pathology Report dated 27.07.2010 (Ext. Ka 11), the vaginal swab clearly indicated the presence of human spermatozoa. There is no evidence to show that the spermatozoa belongs to the accused. Thus, the presence of the human spermatozoa in the vaginal swab of the prosecutrix clearly reveals that she was having sex with someone else, but certainly not with the accused. Lastly, even with relation to the testimony of Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3), the learned Trial Court has correctly assessed their testimonies; it has validly declared them to be untrustworthy witnesses. Ruchi Chetri (P.W. 2) admits that she is the real aunt of the prosecutrix. She further admits that she is an accused in the alleged murder of the prosecutrix's father. Moreover, the testimonies of Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3) clearly indicate that both these ladies were trying to take-over the property which belonged to the prosecutrix's father. There was an animosity between Ruchi Chetri (P.W. 2) and Hema Bohra (P.W. 3) on one side, and the mother of the prosecutrix and the accused on the other side. Since the prosecurix's mother was against the marriage of the prosecutrix with Saurabh Bohra, these two ladies, along with the prosecutrix, fabricated a false case against the accused and the prosecutrix's mother in order to get rid of them. They have succeeded in their plan, as the prosecutrix's mother has absconded, and her property has been attached and sold. The accused, on the other hand, has been arrested, and tried in the present case. Therefore, the learned Trial Court was justified in concluding that a false case has been fabricated against the accused. Thus, the acquittal of the accused is legally valid. Hence, Mr. Mukesh Sing Rawat, the learned counsel for the accused, has supported the impugned judgment. 8. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 9. There are certain well established principles with regard to the jurisdiction of the High Court while dealing with an acquittal order. Hence, Mr. Mukesh Sing Rawat, the learned counsel for the accused, has supported the impugned judgment. 8. Heard the learned counsel for the parties, examined the record, and perused the impugned judgment. 9. There are certain well established principles with regard to the jurisdiction of the High Court while dealing with an acquittal order. In the case of Sampat Babso Kale v. State of Maharashtra, (2019) 4 SCC 739 ], the Hon'ble Supreme Court has laid down the principles with regard to the powers of an appellate Court in an appeal against an acquittal order. The Hon'ble Supreme Court observed as under:- 8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , laid down the following principles: (SCC p. 432, para 42) "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, 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. 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. (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." 10. In the case of State of Rajasthan v. Naresh, (2009) 9 SCC 368 , the Hon'ble Supreme Court opined that "an order of acquittal should not be lightly interfered with even if the court believes that there are some evidence pointing out the finger towards the accused". 11. These principles have recently been reiterated by the Hon'ble Supreme Court in the case of Anwar Ali & another v. State of Himachal Pradesh, (2020) 10 SCC 166 . Therefore, these settled principles of criminal jurisprudence would have to be kept in mind while examining the legality or illegality of the impugned judgment. 12. The prosecutrix has been examined as P.W. 1. In her examination-in-chief, she claims that "her father, Vinay Chetri, expired in 2005. Six to seven months after his death, the accused became her tenant in one of the shops owned by her family. He also developed physical relationship with her mother, Smt. Meena Chetri". I tried to reason with my mother on various occasions. My mother's General Store was one shop away from the shop rented by the accused. When I tried to reason with my mother, my mother started threatening me, and started forcing me to have physical relationship with Ramlakhan. When I refused to do so, my mother, the accused, Ramlakhan, assaulted me, and would force me to have physical relationship with him. I was a minor then. I was in a lot of tension. The accused was having physical relationship with me for the last four to five years. When things started going above my head, my aunt Hema Bohra (P.W. 3), who used to come to my house very often, I gathered sufficient courage to reveal the incident to her. I was a minor then. I was in a lot of tension. The accused was having physical relationship with me for the last four to five years. When things started going above my head, my aunt Hema Bohra (P.W. 3), who used to come to my house very often, I gathered sufficient courage to reveal the incident to her. My mother and the accused used to threaten me that I should not reveal anything to the people at large. After I told about the incident to my aunt, Smt. Hema Bohra (P.W. 3), then on 27.07.2010, I lodged the report with the police." The witness further claims that on 28.07.2010, her statement was recorded by a Magistrate under Section 164 Cr.P.C. When the statement was shown to her, she identified the same. 13. In her cross-examination, the prosecutrix (P.W. 1) admits that her father was murdered. She claims that she does not know the name of the killer as there were many accused, but she admits the fact that "it is true that my uncle and aunt were accused in the said case. My aunt's name is Ruchi Chetri". She further admitted that "it is true that Vinay Chetri (her uncle) was also murdered". But she claims that "Ruchi Chetri, her aunt, is not an accused in the said murder". She further claims that Hema Bohra (P.W. 3) has been coming to their house for a long time. By relation, she is her aunt. She further admitted that till 2nd July, 2010, she had lived with her mother. Thereafter, she is living with her aunt (Ruchi Chetri). According to her, while her mother lives on the ground-floor, her aunt, Ruchi Chetri (P.W. 2), lives on the first-floor. She further claims that on 08.08.2010, she was married to Saurabh Bohra. According to her, she was engaged to Saurabh Bohra on 26.07.2010 at the house of her aunt, Ruchi Chetri (P.W. 2). She further claims that Hema Bohra (P.W. 3), her aunt, had discovered the boy, Saurabh Bohra, as a bridegroom for her. 14. Furthermore, in her cross-examination, she admits that in her complaint, she never stated that "the accused was sexually exploiting her for last four to five years, and her mother and the accused used to beat her up, or used to threaten her." 15. 14. Furthermore, in her cross-examination, she admits that in her complaint, she never stated that "the accused was sexually exploiting her for last four to five years, and her mother and the accused used to beat her up, or used to threaten her." 15. The prosecutrix further admitted in her cross-examination that after 27.06.2010, she had no contact with the accused. According to her, "she had never seen her mother and the accused in compromising situation. She had heard about the illicit relationship between the two from the neighbours and from her grand-mother." However, she could not reveal the names of the neighbours, who had told her about the illicit affair. 16. The prosecutrix further claimed in her cross-examination that "she had informed the Magistrate about the dates on which she was physically and sexually assaulted by the accused." However, when the statement under Section 164 Cr.P.C. was shown to her, she admitted that no specific dates have been mentioned, only years have been mentioned. She further admitted that she "was never medically examined for the injuries caused to her due to the assault carried out by her mother and the accused." 17. In her cross-examination, she further admits that "the Mafinama (Ext. Ka 4) was never shown to S.P. Sahab. It could not be shown as it was in the possession of Hema Bohra (P.W. 3)." According to her, "when she went and met S.P. Sahab, Hema Bohra and Laxmi Devi were with her." She further admitted that even "when she went to Woman Helpline (Mahila Help Line), she did not show them the Mafinama (Ext. Ka-4)." According to her, "her aunt, Hema Bohra, had shown the Mafinama (Ext. Ka-4) in the police station. But they were told to submit the same during the trial." She further admitted that "the Mafinama was never in her possession, but was always in the possession of Hema Bohra." She claimed that "she had spoken about the existence of the Mafinama (Ext. Ka-4) in her statement recorded under Section 161 Cr.P.C." But, once she was confronted with the said statement, she could not explain as to why such an information was not mentioned in her statement. She further stated that she did not mention about the Mafinama before the Magistrate. However, she claimed that she had mentioned about the Mafinama in the complaint given by her (Ext. Ka-1). She further stated that she did not mention about the Mafinama before the Magistrate. However, she claimed that she had mentioned about the Mafinama in the complaint given by her (Ext. Ka-1). When she was confronted with the copy of her complaint (Ext. Ka 1), she admitted that the Mafinama (Ext. Ka-4) is not mentioned in the said complaint (Ext. Ka-1). 18. A bare perusal of the testimony of the prosecutrix (P.W. 1) brings out certain salient points:_ Firstly, the testimony is bereft of details with regard to the date, and the place when and where she was sexually assaulted by the accused. Surprisingly, the prosecutrix does not even mention when she was first time forced to have physical relationship with the accused, either by her mother or the accused, or by both. Secondly, there are no details, whether the prosecutrix was sexually exploited by the accused in her own house, or at any other place. Only a vague statement has been made that "she was sexually exploited by the accused for four to five years." Therefore, her testimony is bereft of the concrete details that are expected from a prosecutrix. Only vague statements and allegations have been levelled against the accused. Thirdly, despite the fact that she claimed that a Mafinama (Ext. Ka-4) was written by the accused, the existence of the Mafinama is neither mentioned in the complaint given to the police, nor in her statement under Section 161 Cr.P.C., nor in the 164 Cr.P.C. statement given by the prosecutrix. For the first time, she mentions the existence of the Mafinama in her testimony. Interestingly, she claimed that both at the time of the complaint (Ext. Ka-1) and at the time of recording of her statement under Section 164 Cr.P.C. by the Magistrate, Hema Bora (P.W.3) had accompanied her. Yet, the mentioning of Mafinama is conspicuously missing from the complaint and from the 164 Cr.P.C. statement. Fourthly, although the prosecutrix claims that the Mafinama was always in the possession of Hema Bohra (P.W.3), interestingly, the Mafinama was produced before the Court by Ruchi Chetri (P.W. 2). The prosecution has not revealed as to how the Mafinama, which was stated to be in possession of Hema Bohra (P.W. 3), came into the possession of Ruchi Chetra (P.W.2). Fifthly, the prosecution has not submitted any evidence to prove that the writing in the Mafinama is that of the accused. The prosecution has not revealed as to how the Mafinama, which was stated to be in possession of Hema Bohra (P.W. 3), came into the possession of Ruchi Chetra (P.W.2). Fifthly, the prosecution has not submitted any evidence to prove that the writing in the Mafinama is that of the accused. Therefore, the authenticity and the veracity of the Mafinama is highly doubtful. Sixthly, Ruchi Chetri (P.W. 2) claims in her examination-in-chief that "although the prosecutrix had mentioned the sexual exploitation by the accused, firstly, to her aunt, initially she did not believe the prosecutrix. It is only when the prosecutrix mentioned the said fact to Hema Bohra (P.W.3) that she was convinced that such an incident had happened. This part of the testimony of Ruchi Chetri (P.W. 2) is contradicted by the testimony of the prosecutrix herself, for, according to the prosecutrix herself, she did reveal the fact of her sexual exploitation by the accused, firstly, to Hema Bohra (P.W. 3), and not to Ruchi Chetri (P.W.2)." Seventhly, according to the prosecutrix, Hema Bohra (P.W.3), the adoptive aunt of the prosecutrix, was a frequent visitor to her house. Therefore, she gathered enough courage to reveal the incident, firstly, to Hema Bohra (P.W. 3). However, Hema Bohra (P.W.3) contradicts the testimony of the prosecutrix. For, Hema Bohra (P.W.3) clearly states that she never visited the house of the prosecutrix. According to her, the prosecutrix merely informed her on the telephone. Therefore, it is highly unlikely that the prosecutrix would have revealed her story to a person who is a totally stranger to her. Eighthly, the prosecutrix claims that it is Hema Bohra (P.W.3), who had discovered her fianc Saurabh Bohra. Yet, on the other hand, Smt. Hema Bohra(P.W. 3) neither attended the engagement, nor the marriage of the prosecutrix with Saurabh Bohra. This is rather surprising that a person, who is stated to have found the bridegroom for the prosecutrix, is allegedly very close to the family, and is allegedly a frequent visitor to the family of the prosecutrix, would not even attend the engagement and / or the marriage of the prosecutrix. Therefore, it is highly doubtful whether Hema Bohra (P.W.3) was really close enough to the family, or was a frequent visitor to the family, for the prosecutrix to reveal the sexual assault suffered by her to Hema Bohra (P.W. 3). Therefore, it is highly doubtful whether Hema Bohra (P.W.3) was really close enough to the family, or was a frequent visitor to the family, for the prosecutrix to reveal the sexual assault suffered by her to Hema Bohra (P.W. 3). Ninthly, in her cross-examination, the prosecutrix admits that after 27.06.2010, she never met the accused, Ramlakhan. Yet, according to the Medical Report (Ext. Ka-11) dated 27.07.2010, "Human Spermatozoa" was found in the vaginal swab of the prosecutrix. It is, indeed, a common knowledge that a spermatozoa does not survive in the vagina for more than seventy-two hours. Therefore, the presence of human spermatozoa in the vaginal swab of the prosecutrix, that too, after a month after her alleged meeting with the accused throws a grave suspicion about the veracity of her testimony. 19. A bare perusal of the impugned judgment clearly reveals that the learned Trial Court has critically analyzed the evidence produced by the prosecution. The learned Trial Court has made a reasonable assessment of the evidence produced by the prosecution; the learned Trial Court has given cogent and convincing reasons for acquitting the accused. Since a reasonable view has been taken by the learned Trial Court, this Court does not find any illegality, or perversity in the impugned judgment. 20. For the reasons stated above, this Court does not find any merit in the present appeal. The same, is hereby, dismissed.