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2024 DIGILAW 1153 (ALL)

Bhure Singh Chak v. State of Uttar Pradesh

2024-04-29

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : 1. This appeal is by the informant challenging the judgment of acquittal dated 7.12.2023, passed by the court below in P.S.T. No. 156 of 2022 (State Vs. Bhura @ Vimal & Ors.) arising out of Case Crime No. 421 of 2021, under Sections 376, 323, 504, 506 IPC and Section 3/4 POCSO Act, Police Station Rasoolpur, District Firozabad. 2. Informant is the father of the victim, who has given a written report on 26.10.2021 stating that he works in different district in order to take care of his family. His family is living in the house of one Shivraj Katheria for the last two and a half years. Accused lives in front of the informant's house. It is alleged that victim is sixteen years old and was being harassed by the accused, who also extended life threats to her. Victim was also threatend not to report the incident. On 24.10.2021 when he returned home the victim informed all such facts whereafter the informant made a protest to the father of the accused, who started misbehaving with the informant and bricks etc were thrown on their house. Police was called whereafter accused persons fled. It is stated that accused persons are influential persons and pressure was being exerted on the victim to marry the accused on the ground that a video has also been prepared. On such allegations Case Crime No. 421 of 2021 was registered under Sections 354, 323, 336, 504, 506 IPC and Section 7/8 POCSO Act. The statement of victim was recorded under Section 161 and 164 Cr.P.C. whereafter Sections 354,336 IPC read with Section 7/8 POCSO Act was deleted and Section 376 IPC and Section 3/4 POCSO Act was added. Court took cognizance of the matter and also framed charges under Sections 376, 323, 504, 506, 427 IPC read with Section 3/4 POCSO Act. The accused persons denied the accusations and demanded trial. 3. In addition to various documentary evidence which would be referred to later the prosecution has produced the informant as PW-1; victim as PW-2. PW3 is Smt. Nisha, who is the mother of the victim. PW-4 and PW-5 are doctors, who have medically examined the victim and have determined her age etc. PW-6 is the Investigating Officer. Principal of Dau Dayal Girls Inter College, Firozabad has also been produced as PW-7 for proving the minority of the victim. 4. PW3 is Smt. Nisha, who is the mother of the victim. PW-4 and PW-5 are doctors, who have medically examined the victim and have determined her age etc. PW-6 is the Investigating Officer. Principal of Dau Dayal Girls Inter College, Firozabad has also been produced as PW-7 for proving the minority of the victim. 4. The evidence has been examined by the court of Sessions on various aspects. First and foremost the aspect of minority has been examined. In the medical examination the victim has been found to be eighteen years of age. On behalf of the prosecution a transfer certificate has been produced from the institution where the victim was admitted for the first time in class eight. The basis of recording date of birth in the previous institution or the municipal records relating to date of birth etc. have not been produced. What was the material on the basis of which the age was recorded initially at the time of admission to class one has not been produced. Merely on the strength of transfer certificate and scholars register the court below has refused to determine the age of the victim as sixteen years. On this aspect of the matter we find that the view taken by the court of Sessions is in conformity with the laws laid down by the Supreme Court in P. Yuva Prakash vs. State Rep. by Inspector of Police, 2023 SCC Online SC 846 and we find that no error in the view so taken by the court below. 5. The next aspect which has been examined by the court of Sessions is medical examination report in which no injuries of any kind have been found on the victim. Slides were prepared from the victim and in the pathological report no spermatozoa etc has been found. The victim was also not found to be carrying any pregnancy etc. The doctor on the basis of medical examination and pathological report has declined to express any definite opinion with regard to commissioning of rape upon the victim. 6. The oral testimony of the victim has been carefully examined by the court of Sessions. PW-2 (victim) in her statement has stated that for the last about eight months she was being subjected to sexual assault repeatedly by the accused person by extending threats and also for the reason that he was carrying firearm. 6. The oral testimony of the victim has been carefully examined by the court of Sessions. PW-2 (victim) in her statement has stated that for the last about eight months she was being subjected to sexual assault repeatedly by the accused person by extending threats and also for the reason that he was carrying firearm. This aspect of the matter is a complete departure from what was disclosed in the FIR. The fact that victim is a major and was living just across the house of the accused and has not made any complaint to other family members including her mother etc. for a long period of eight months has been relied upon as a circumstance against the prosecution to disbelieve the case of the victim. It has been opined that the relationship being consensual cannot entirely be ruled out even if the victim's statement is taken to be correct. The victim in her testimony under Section 161 Cr.P.C. has stated that accused had subjected her to sexual assault for the last about eight months whenever the family members of the victim would go out. The landlord would call the accused on telephone about absence of any other family members in order to facilitate such relationship. In her statement under Section 164 Cr.P.C. victim has stated that twice she has been subjected to rape by the accused against her consent. She has admitted that when such physical relations were formed the victim neither raised any alarm nor inform any family member or even raised protest. In the statement under Section 164 Cr.P.C., it is for the first time, alleged that the accused used to carry a firearm with which she was threatened. 7. From the statement of victim the court of Sessions has opined that her testimony cannot be treated to be that of a sterling witness so as to base the conviction entirely upon her testimony. 8. So far as the incident of 24.10.2021 is concerned, though it is specifically asserted that the accused persons threw stones etc. on the house of the informant but no evidence in that regard has been produced during trial. No independent witnesses have been produced to support any such incident. The court of Sessions, therefore, has found that prosecution has not been able to establish its case beyond reasonable doubt. 9. on the house of the informant but no evidence in that regard has been produced during trial. No independent witnesses have been produced to support any such incident. The court of Sessions, therefore, has found that prosecution has not been able to establish its case beyond reasonable doubt. 9. Learned counsel for the informant states that the victim has truthfully deposed during trial and the mere fact that allegation of rape was not mentioned in the FIR was because she felt nervous informing such facts to her family members. 10. Though the argument in that regard is worth consideration but we find that the mother of the victim was also residing with her. There was no reason that such incident cannot be reported to the mother or anybody else in the neighborhood. Eight months is a pretty long period and the fact that an adult person refrains such information; raises no protest; does not raise an alarm when the incident occurs etc. are indicative of the fact that the relationship could have been consensual. In the facts and circumstances of the present case, the view taken by the court of Sessions to acquit the accused by granting him benefit of doubt is a permissible view and just because a different view on facts could be taken is not a ground to interfere with the judgment of the court below. The scope of interference by High Court in matters of acquittal by trial court has been discussed by the Apex Court in the case of Babu Sahebagouda Rudragoudar & Ors. vs. State of Karnataka, 2024 SCC Online SC 561. Para 36 to 40 of the judgment are relevant for the present purposes and are reproduced hereinafter: “36. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial Court. 37. This Court in the case of Rajesh Prasad v. State of Bihar encapsulated the legal position covering the field after considering various earlier judgments and held as below: “29. 37. This Court in the case of Rajesh Prasad v. State of Bihar encapsulated the legal position covering the field after considering various earlier judgments and held as below: “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ] “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, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 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. 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.” 38. Further, in the case of H.D. Sundara v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: “8.1. Further, in the case of H.D. Sundara v. State of Karnataka this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: “8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible. 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: (a) That the judgment of acquittal suffers from patent perversity. (b) That the same is based on a misreading/omission to consider material evidence on record. (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.” 11. Even from the original trial court records also it is not shown that any relevant material has either been overlooked or has been misconstrued. Our attention has not been invited to any such evidence. 12. In that view of the matter, we are not persuaded to entertain the present appeal. The appeal is, consequently, summarily rejected.