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2022 DIGILAW 338 (UTT)

xxxxx v. State of Uttarakhand

2022-10-11

ALOK KUMAR VERMA, SANJAYA KUMAR MISHRA

body2022
JUDGMENT : In this appeal against acquittal, the victim (name withheld), has assailed the judgment of the learned 3rd Additional Sessions Judge, Haridwar, dated 11.10.2013, in Session Trial No. 222 of 2009, acquitting the respondent no. 2 of the offences punishable under Sections 363, 366, 376, 368 of the Indian Penal Code, 1860 (hereinafter referred to as the Penal Code for brevity) on the ground that the judgment recorded by the learned Additional Sessions Judge, Haridwar, is perverse, unjust and unreasonable. 2. The case of the prosecution, in short, is that the informant of the case (name withheld), who has been examined as PW1, produced a written report before the S.H.O. Manglore, Haridwar, that his elder daughter has been married in Village Tashipur, P.S. Manglore, and that the victim went to her house and stayed there for sometime. On 01.06.2008, respondent no. 2 forcibly abducted and took her away. The complainant was informed about it by his elder daughter, and, therefore, he presented the report before the S.H.O. On the basis of the report, the investigation of the case was taken up. In course of investigation, the investigating officer examined the complainant and other witness, seized the important documents, and after completion of investigation has submitted the charge sheet against respondent no. 2 for the offences described above. 3. The defence took a plea of simple denial, and false accusation. 4. In order to prove its case, the prosecution got examined 9 witnesses. PW5 is the appellant/victim herself, PW1 is her father. He is the complainant in this case. PW2 and PW3 (names withheld) are two sisters of the victim, PW4 Dr. Kamal is the medical officer who has examined the victim on the requisition of police, PW6 S.I. Satyaprakash Sharma, PW7 Constable Sanjayram, PW8 Dr. Yogesh Kumar and PW9 Ajay Kumar Saini are other official witnesses examined in this case. The prosecution also relied upon several documents, which are, Ex. Ka-2 is the medical report with respect to the victim, Ex. Ka-9 complementary( izrhiwjd ) medical report of the victim, Ex. Ka-10 copy of family register. 5. In defence, respondent no. 2 examined DW1 Meghnath to prove the school admission register exhibited as Ex. Kha-1. 6. The prosecution also relied upon several documents, which are, Ex. Ka-2 is the medical report with respect to the victim, Ex. Ka-9 complementary( izrhiwjd ) medical report of the victim, Ex. Ka-10 copy of family register. 5. In defence, respondent no. 2 examined DW1 Meghnath to prove the school admission register exhibited as Ex. Kha-1. 6. On the basis of the evidence led from both the sides and the documents produced, the learned 3rd Additional Session Judge disbelieved the case of the prosecution that the date of birth of the victim was 10.05.1992, rather the learned 3rd Additional Session Judge accepted the defence case specially the evidence of DW1, which is supported by the school admission register, which reveals that her date of birth is 10.05.1989. Further, holding that there is material contradiction in the evidence of PW5, and that since she was a consenting party to the entire episode, the learned 3rd Additional Session Judge held that the case of the prosecution cannot be believed, and, therefore, he acquitted the respondent no. 2. 5. In assailing the such finding, the learned counsel for the appellant/victim, Mr. Gaurav Singh would submit that the appreciation of evidence of learned 3rd Additional Session Judge is perverse, and, that in view of clear evidence of the fact that the victim was a minor at the time of the occurrence, the Additional Session Judge should have convicted the respondent no. 2. The learned counsel for respondent no. 2 Mr. Pawan Mishra, on the other hand, would submit that school leaving certificate is a better proof of age of the victim-girl in view of the fact that it is in accordance to Rule 12 of the Juvenile Justice Rule, 2007, and, therefore, the learned 3rd Additional Session Judge has not committed illegality in convicting the respondent no. 2. 6. In order to appreciate the facts of the case and to find out whether the learned 3rd Additional Sessions Judge has come to a wrong conclusion or not, it is appropriate to take into consideration two aspects of the case. Firstly, the evidence of PW5 has to be examined and the evidence regarding the proof of her age led from both the sides has also to be examined. PW5 in her statement has stated about his relationship with the elder sister and, that on 01.06.2008 she was in Tashipur with her elder sister. Firstly, the evidence of PW5 has to be examined and the evidence regarding the proof of her age led from both the sides has also to be examined. PW5 in her statement has stated about his relationship with the elder sister and, that on 01.06.2008 she was in Tashipur with her elder sister. She was residing there for about two months. She further stated that on 01.06.2008, the respondent came to their house, and threatened her and then showed a knife to her and forced her to accompany him. Thereafter, he took her to the State of Haryana to a place which could not be named by the victim. She further stated on oath that respondent no. 2 kept her in one room and forcibly committed rape on her on repeated occasions. She has further stated that he was keeping her inside a closed room for about two months, and thereafter he came to the police station, and after execution of documents handed her over to her father. She has further stated that at the time of occurrence she was 16 years old, and, that she also identified the respondent no. 2 in the Court. She has been cross-examined at length by the defence. In the cross-examination she has stated that she told the investigating officer about the commission of rape upon her. She has further stated that though she has stated before the investigating officer while her statement was being recorded under Section 161 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for brevity) that respondent no. 2 convinced her ( cgyk Qqlykdj ) and also regarding the threat given by the respondent by showing a knife but she could not say why the investigating officer did not write the same in the statement. She has further stated that she has never stated before the investigating officer that she started loving the respondent ( izse Hkko tkx`r gksus okyh ckr ) but she cannot say why the investigating officer wrote the same. She has further stated that she has never stated before the investigating officer that she started loving the respondent ( izse Hkko tkx`r gksus okyh ckr ) but she cannot say why the investigating officer wrote the same. She has further stated that she never told the investigating officer that in the State of Haryana, they were working for some Punjabi and that he was paying wages to them and they were spending same for their day to day expenses and she could not state why the investigating officer wrote that she has stated so in her statement recorded under Section 161 of the Code. Thus, it is clear from the aforesaid fact that the victim/PW5 in her statement, recorded by the investigating officer under Section 161 of the Code had not stated about the enticing away of the respondent and threat given to her by showing a knife, which appears to be a development later on. She has stated before the investigating officer that she was in love with respondent no. 2 and that they were working for one Punjabi on the wages that were being given by the said Punjabi and they were spending for their livelihood. Thus, it is clear from the statement that the statement of the victim suffers from major discrepancies. 7. The learned Trial Judge also took into consideration the fact that the victim went with the respondent from their village by taking a chotahanthi (a kind of transport vehicle) then they took a train to Haryana. The trial Judge further took note of the fact that both of them resided in a house for a long time, and that she was being left alone by the respondent in that room and that she never raised any hue and cry even when there were many people around. Therefore, he came to a conclusion that prosecution cannot be held to be free from doubt. 8. As far as proof of age is concerned, PW9 Ajay Kumar Saini has stated that as per his records, date of birth of the victim-girl recorded in the family register is 10.05.1992. However, in the cross-examination he has stated that he was posted in the said village on 01.03.2013 and since then he was working. The entries made in the main register are not in his hand. However, in the cross-examination he has stated that he was posted in the said village on 01.03.2013 and since then he was working. The entries made in the main register are not in his hand. It is in the hand of some other officer but he has admitted that register does not contain any signature or seal of any officer. He has further stated that he has no personal knowledge about the fact of entry of date of birth of the victim in the register. It is also brought out in the cross-examination from the mouth of this witness that when original record was prepared wherein date of birth of different persons have been recorded. The original register was destroyed and new register was prepared but he could not say when and who destroyed the original register. Thus, it is clear that evidence regarding maintenance of the family register, which has been relied heavily by the prosecution is not free from doubt. On the other hand, DW1 Meghnath has stated on oath that at the time of examination in the Court as a defence witness, he was the Head Master of the Primary School at Dehri. He proved the admission register and further stated that the date of birth of the victim has been recorded in the admission register as 10.05.1989. The victim has taken admission in class-1 on 16.08.1995 and that she studied there up to class 5. On 31.05.2000, after passing out class-5, she left the school. He proved the admission register, the relevant entry and further proved that he has made the entries and that he signed and also seal of the school is available in the register. Thus, it is apparent from the record that the school register describes the date of birth of the victim as 10.05.1989 thereby the learned Trial Judge’s conclusion that at the time of occurrence she was more than 19 years appears to be correct. 9. The learned Trial Judge also took into consideration the Rule 12 of the Juvenile Justice Rules 2007, specially Sub-rule (3) thereof wherein it has been laid down that in order to determine the age of the child if school certificate or matriculation certificate or school leaving certificate are available then it shall be considered for the purpose of determining the age of a child. He also took into consideration the observations made by the Hon’ble Supreme Court in the case Jarnail Singh vs. State of Haryana, CRLA No. 1209 of 2010, decided on 01.07.2013 wherein the Hon’ble Supreme Court has held that in order to determine the age of a child, the relevant evidence is the school register. 10. In that view of the matter, this Court is of the opinion that the learned Trial Judge has not committed any perversity either in holding that victim was not a minor at the time of the occurrence and that her conduct of leaving the village by taking public transport to Haryana, residing there for two months with respondent no. 2 and doing menial work for earning wages and which they expended for their livelihood and the fact that she never raised hue and cry and complain against the activity of respondent no. 2 leads to the conclusion that she was consenting party to the entire episode cannot be held to be unreasonable, perverse requiring interference of the appellate court upsetting the judgment of acquittal. 11. It is settled principle of law on appreciation of evidence that in an appeal against acquittal, the consideration that should weigh in the mind of the appellate court are different from an appeal against conviction. A person is presumed to be innocent unless proven guilty. Such presumption becomes stronger after the learned Trial Judge comes to a conclusion that the prosecution has not proved its case beyond reasonable doubt and accused is acquitted of the charges. However, such presumption, however stronger it is always a rebutable presumption but there has to be very compelling substantial reasons to upset such presumption which becomes stronger after the judgment of acquittal. The appellate court can always upset the conviction of acquittal of a person if it on reappreciation of evidence comes to a conclusion that reasons given by the learned Trial Judge is perverse in the sense that he has appreciated the evidence in a manner not known to law. However, in the present case, we have seen that the evidence has been properly discussed by the learned Trial Judge and he has given his finding regarding the different aspect of the case especially regarding the determination of age of the victim as well as the conduct of the victim in the entire episode. 12. However, in the present case, we have seen that the evidence has been properly discussed by the learned Trial Judge and he has given his finding regarding the different aspect of the case especially regarding the determination of age of the victim as well as the conduct of the victim in the entire episode. 12. Thus this Court of the opinion that there is no substantial and compelling grounds to upset the acquittal of respondent no. 2. 13. In the result, upon re-analysis of the evidence on records, in the light of the observations made by the learned Trial Judge and because of the arguments advanced by the learned counsel appearing for both the sides, this Court is of the opinion that there is no merit in this appeal. 14. Hence, the appeal is dismissed. 15. TCRs be sent back.