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2022 DIGILAW 176 (UTT)

Kamaljeet Kaur v. State of Uttarakhand

2022-06-30

SANJAYA KUMAR MISHRA, VIPIN SANGHI

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JUDGMENT : 1. In this appeal, preferred by the informant-victim, the judgment of acquittal recorded by the learned 1st Additional Session Judge, Rishikesh, Dehradun, in Session Trial No. 40 of 2013, dated 18.10.2013 has been assailed. The private respondents faced the trial in the alleged commission of offence under Sections 323, 504, 506, 376, 498A, 313 of the Indian Penal Code, 1860 (hereinafter referred to as the Penal Code for brevity) read with Section 3/4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the D.P. Act for brevity). 2. The case of the prosecution, in short, is that on 06.06.2008, the appellant sent a written representation to the Director General of Police, Uttarakhand, on the allegation that her marriage with respondent Lakha Singh @ Lakhvinder Singh, son of Darshan Singh was solemnized on 25.01.2007. At the time of marriage, her father had given dowry as per his capacity but later on she was being subjected to dowry torture with additional demand of Rs. 14 lakhs for the purpose of purchase of piece of land and also demand was raised for a car. The FIR, however, mentioned that she was given various type of torture by the respondents and one day, in the year 2007 her brother-in-law committed rape upon her with the help of her sister-in-law Amandeep. Later on when she objected about the same, her father-in-law, mother-in-law and husband did not pay any heed to her complaint and said that the matter should not be disclosed before anybody else for the family prestige. The appellant allegedly kept quiet as she was a divorcee and had solemnized second marriage and wanted to save the second marriage. Thereafter a village panchayat was called wherein the private respondents gave written Mafinama and promised not to harass the appellant in the future. However, further allegation of the appellant is that even thereafter the father-in-law of the appellant has committed rape upon her with the help of his wife, and, thereafter she has been subjected to rape on various occasions both by her brother-in-law as well as father-in-law. Ultimately, on 07.02.2008, they started torturing the appellant and started assaulting her and also tried to take her life but she assured that she will not make complain about the assault, they let her live. On the next date, at about 9:00 a.m., she escaped from the house and went to her father’s house. Ultimately, on 07.02.2008, they started torturing the appellant and started assaulting her and also tried to take her life but she assured that she will not make complain about the assault, they let her live. On the next date, at about 9:00 a.m., she escaped from the house and went to her father’s house. The FIR further mentioned that she did not complain about torture meted to her by the members of her husband’s family and kept quiet, later on when her father insisted her to go back to her maternal home she revealed before him about the torture meted to her, ultimately filing of a report before the D.G. Police on 06.06.2008, i.e. four months after leaving her maternal home and proceeding to her parental home. It is borne out from the record that this matter was reported to the police only because her father received a telephone call from a women helpline, Rudrapur, District Udham Singh Nagar. 3. On receipt of such written complaint from the appellant-complainant, the D.G. Police directed the concerned S.H.O. to take up investigation. The S.H.O. registered the compliant as an FIR and took up the investigation of the case. In course of investigation, he examined the complainant, other witnesses, arrested accused persons and seized material object. The complainant was examined by the Doctor and upon completion of investigation, the investigating officer submitted charge sheet against the private respondents. 4. The defence took plea of denial and false accusation by the complainant and her father with a motive to extort money and to grab the landed property belonging to the respondents. 5. The prosecution, to prove its case, examined six witnesses on its behalf, namely, PW1 (name withheld), PW2 (name withheld), PW3 Ravindra Pal, PW4 Dr. Shikha Jangpangi, PW5 S.I. Mithlesh Kumar and PW6 S.I. Jeeto Singh. The defence examined as many as six witnesses, namely, DW1 Mohan Lal, DW2 Km. Shobha, DW3 Jaswant Singh, DW4 Smt. Anita, DW5 Rajkumar and DW6 Anup Kumar Thakur in order to establish its case of false implication, 6. The learned 1st Additional Session Judge, after taking into consideration the entire case of the prosecution, in the light of the defence case suggested, came to a conclusion that prosecution story cannot be believed and has come to the conclusion that private respondents are not guilty of the offences as alleged. The learned 1st Additional Session Judge, after taking into consideration the entire case of the prosecution, in the light of the defence case suggested, came to a conclusion that prosecution story cannot be believed and has come to the conclusion that private respondents are not guilty of the offences as alleged. Such judgment of acquittal has been challenged in this appeal. 7. The original counsel, namely, Mr. Manish Arora did not appear in the Court in spite of several listing, and, therefore, Mr. Pawan Mishra was appointed as Amicus Curiae in this case. Mr. Pawan Mishra was given sufficient time to prepare for the case on behalf of the appellant and was also provided with the copy of the paper book. 8. In course of hearing, the learned Amicus Curiae for the appellant would submit that there is improper appreciation of evidence on the part of the learned Trial Judge, and, therefore, the appeal should be allowed and the judgment of acquittal should be reversed into a judgment of conviction. Mr. J.S. Virk, the learned Deputy Advocate General has supported the case of the appellant and prayed for reversal of acquittal. 9. Mr. M.S. Pal, the learned counsel appearing for the private respondents however submits that the learned Trial Judge has a very perspicacious view of the matter on record and after detailed discussion of the same has come to a just and proper conclusion, and, therefore, there is no need to set aside the judgment of acquittal by this appellate court. 10. While appreciating the material on record, this Court takes into consideration the fact that though, admittedly, it is the case of the prosecution that mafinama/panchayatnama was executed by the respondents after the incident of commission of rape and other atrocities by the brother-in-law of the appellant, but it is strange enough that there is no mention of any such commission of rape in the said mafinama/panchayatnama. It is also borne out from the record that there is contradiction regarding the time of the sexual atrocities committed upon the appellant in her statement recorded under Sections 164 and 161 of the Code. She has admitted that on 26.07.2007 when Panchayat was convened she has not disclosed before the Panchayat that she was raped by her brother-in-law and father-in-law. She has admitted that on 26.07.2007 when Panchayat was convened she has not disclosed before the Panchayat that she was raped by her brother-in-law and father-in-law. It is also borne out from the record that her father-in-law is 90% disabled and that he does not have one hand and one leg. In that view of the matter, the learned Trial Judge has come to the conclusion that it was not possible on the part of a person, who has 90% disability to commit rape upon the appellant especially when she resisted her advances. 11. As far as the execution of samjhautanama (compromise) is concerned, DW3, who has scribed the same, has stated that on 26.07.2007 when he was passing through village Kunda he heard the sound ^cpkvks cpkvks^ from the house of Darshan Singh. He went inside the house and found that Darshan Singh and Lakha Singh had sustained injuries. Four persons were there, out of four one is Gurcharan Singh, who was identified by the witness. Gurcharan Singh was accompanied by a “Mona Sardar”, who was holding a gun. Thereafter, two brothers of Darshan Singh, namely, Harbhajan Singh and Gurmej came to that place. When DW3 and other started asking about the dispute, then Gurcharan Singh stated before them that he asked Lakha Singh to execute five acres of land in favour of her daughter but the same has not been done, therefore there was a dispute. Thereafter, many other persons came there and Gurcharan Singh told that five acres of land should be given to his daughter for compounding the dispute. He further told that if the land is not transferred in favour of his daughter then he shall take appropriate action against the respondents as he is very close to some police officials. He also threatened that he will initiate criminal case against the respondents and lock them in the prison. Thereafter Gurcharan said that if they execute the document regarding the transfer of land in favour of his daughter then he would go away from there. The said witness examined on behalf of the defence. He stated that when nobody came forward to write the document, the witness was requested to scribe the same. Thereafter this witness scribed it to the dictation of Gurcharan Singh who happens to be a father of the appellant. The said witness examined on behalf of the defence. He stated that when nobody came forward to write the document, the witness was requested to scribe the same. Thereafter this witness scribed it to the dictation of Gurcharan Singh who happens to be a father of the appellant. The witness signed the documents and then left the place after handing over the paper to Gurcharan Singh. Thus it is clear that samjhautanama or the document of confession has not been executed by the respondents rather it has been scribed by DW3 as per the dictation of the PW1. Such samjhautanama does not found part of the record. 12. On conspectus of the material available on record, in the light of the submissions made by the learned counsel appearing for the parties, our observation is that for the following reasons, the learned 1st Additional Session Judge did not convict the private respondents and come to the conclusion that prosecution has not proved its case beyond reasonable doubt. The consideration enumerated as hereunder:- (i) Though, the complainant escaped from the house of the respondents i.e. her matrimonial house on 08.02.2008, she moved representation before the D.G. Police on 06.06.2008 but she could not give specific reasons for delay of about four months in lodging the complaint. (ii) Though mafinama was executed allegedly after commission of offence including rape by both brother8 in-law and father-in-law but such mafinama does not reflect such allegation made by the complainant. (iii) It is also not disputed that Doctor upon examination of the complainant did not find any sign of rape or abortion. Of course, it was not possible after expiry of four months to find any sign of rape but there is every possibility of discovering signs of abortion but in this case there are no such signs. (iv) It is also not disputed and accepted by the learned 1st Additional Sessions Judge that father-in-law of the complainant is 90% disabled person hence we are in agreement with the learned Trial Judge that it is not possible that 90% disabled person to commit rape upon a lady if she is a fully grown lady. (v) DW3 is scribe of samjhautanama/faisla, stated that the samjhautanama was scribed at the instance of PW1, father of the complainant not by the private respondents. 13. (v) DW3 is scribe of samjhautanama/faisla, stated that the samjhautanama was scribed at the instance of PW1, father of the complainant not by the private respondents. 13. The aforesaid grounds are not specifically or separately enunciated or elaborate in any paragraph of the judgment but these aspects are discernible from the judgment and we are of the opinion that there is no perversity or unreasonableness in appreciation of evidence in this case by the learned 1st Additional Session Judge to come to a conclusion that judgment of acquittal should be reversed to a judgment of conviction. 14. We also take note of the ratio decided by the Hon’ble Apex Court in Ghurey Lal vs. State of U.P., (2008) 10 SCC 450 in which the Hon’ble Supreme Court after taking into consideration the host of earlier judgments and the principles guiding conciliation and disposal of appeal against acquittal, laid down the following principles:- i) The trial court's conclusion with regard to the facts is palpably wrong; ii) The trial court's decision was based on an erroneous view of law; iii) The trial court's judgment is likely to result in "grave miscarriage of justice"; iv) The entire approach of the trial court in dealing with the evidence was patently illegal; v) The trial court's judgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc. vii) This list is intended to be illustrative, not exhaustive. 15. Thus, it is clear that in this case there is no allegation from the side of the Amicus Curiae appointed by us for the appellant that the learned 1st Additional Session Judge committed a perversity in appreciating the evidence or that his appreciation was unreasonable requiring our interference. It is also not the case of the appellant that the learned Trial Judge did not consider certain admissible matter or that he interpreted the law in such a manner not acceptable to the appellate court. The learned Trial Judge on the other hand, has very elaborately discussed the evidence and come to a very definite conclusion regarding the reasons why the prosecution case should be disbelieved. 16. In that view of the matter we are of further opinion that there is no compelling or substantial reason for overturning the judgment of acquittal to judgment of conviction. 16. In that view of the matter we are of further opinion that there is no compelling or substantial reason for overturning the judgment of acquittal to judgment of conviction. 17. In that view of the matter, we do not find any infirmity in the judgment passed by the learned 1st Additional Session Judge acquitting the private respondents of the offences alleged and setting them free. 18. Hence, the appeal being devoid of merit, is dismissed. 19. TCRs be sent back.