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2024 DIGILAW 224 (UTT)

State of Uttarakhand v. Irshad

2024-04-02

ALOK KUMAR VERMA, RITU BAHRI

body2024
JUDGMENT : Ritu Bahri, C.J. The State has come up in appeal against the judgment dated 14.01.2015, passed by the learned 6th Additional Sessions Judge, Dehradun in Sessions Trial No. 57 of 2013, whereby the respondent - Irshad has been acquitted for the offence punishable under Section 376 of the Indian Penal Code, 1860. 2. The prosecution case, in a nutshell, is that a written complaint was given by father-in-law of the victim, in Police Station - Patel Nagar, Dehradun, stating that on 12.01.2013 at 11 P.M., his daughter-in-law was raped by Irshad S/o Md. Shabir. On the basis of the said complaint, a case was registered under Section 376 IPC. 3. After Investigation, a Challan was presented against the respondent. The charge-sheet was filed against the respondent under Section 376 IPC. After filing of the charge-sheet, following witnesses were examined : P.W.-1 Victim. P.W.-2 Informant. P.W.-3 Dr. Bandana Sundriyal. P.W.-4 Husband of the victim. P.W.-5 Mother-in-law of the victim. P.W.-6 Sub-Inspector Deepika Rawat. P.W.-7 Women Const. Preeti Panwar. P.W.-8 Sub Inspector Kiran Aswal. 4. The Trial Court, after going through the entire evidence led by the prosecution, acquitted the accused. No offence, under Section 376 IPC, was made out against the accused - Irshad, as the prosecution had failed to establish its case beyond reasonable doubt. 5. The Trial Court further observed that the prosecution story becomes completely doubtful, as in an open construction, where 100-200 persons resided at a distance of about 5 feet from the house of the complainant, the accused raped the victim, and when she screamed, no other person hear her screaming, except her father-in-law, and no other family member came out from the house of the victim. The Trial Court also observed that, as per the statement of the victim, the place of incident was used to keep the animal dung, but there is no evidence to show that the victim’s clothes were stained with animal dung. 6. The case at hand predominantly relies on circumstantial evidence for the prosecution's argument. The legal principles concerning conviction based on such evidence were extensively elucidated in the landmark judgment of the Hon’ble Supreme Court in the case of Raja Naykar v. State of Chhattisgarh, 2024 SCC OnLine SC 67, wherein the Hon’ble Supreme Court has held as under : “14. Undoubtedly, the prosecution case rests on circumstantial evidence. The legal principles concerning conviction based on such evidence were extensively elucidated in the landmark judgment of the Hon’ble Supreme Court in the case of Raja Naykar v. State of Chhattisgarh, 2024 SCC OnLine SC 67, wherein the Hon’ble Supreme Court has held as under : “14. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, wherein this Court held thus: “152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [ (1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [ (1972) 4 SCC 625 : AIR 1972 SC 656 ]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 153. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.” 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 15. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. 15. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. 16. It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.” 7. In the facts of the present case, as per the statements of the prosecution witnesses - Salim, Sultan & Sabina, the accused Irshad had raped the victim. Prosecution Witness No. 2 also stated that he did not see the accused - Irshad doing anything with the victim, but only saw her coming out of the room. Prosecution Witness No. 3 - Vandana Sundriyal (Doctor) stated that the victim did not have any injury, which could confirm rape. The victim had received injuries on 12.01.2013, but she was not medically examined, and she cannot give any opinion about rape. As per the opinion given by Dr. Vandana Sundriyal, she did not give any opinion with respect to rape. The victim had received injuries on 12.01.2013, but she was not medically examined, and she cannot give any opinion about rape. As per the opinion given by Dr. Vandana Sundriyal, she did not give any opinion with respect to rape. Hence, the finding of the lower Court that the injuries sustained by the victim on her lips and hands were due to the incident dated 12.01.2013 does not require any interference by this Court. 8. Even the Prosecution Witnesses – Female Constable Preeti Panwar, Sub Inspector Deepika Rana and Sub Inspector Kiran Aswal did not get any statement against the accused, which could prove that he had committed rape upon the victim. Apart from victim’s statement that she was raped, there is no other evidence led by the prosecution to corroborate the statement of the victim. 9. The victim, in her statement under Section 164 CrPC - Exhibit A-2, has described the place of incident as a room, which was being used to keep animal dung. As per Exhibit A-5, the investigator stated that this room was a hut made of battens, with a black foil roof on it. The structure was made by foil roof on poles, which was used for dumping animal dung. There is no evidence led by the prosecution to show that the victim’s clothes were stained with animal dung. In this backdrop, the alleged incident could not take place inside that room. 10. As per Prosecution Witness No. 4, her house was just two feet away from Islam’s house. The bathroom and adjacent hut are shown on the map next to Islam's house. If the victim had been raped at a distance of only 5 feet from the house of the complainant, there were approximately 100-200 people living in this colony, where most of the houses were made of mud and plastic sheets. As per P.W.-1 and P.W.-5, all the family members of the accused were awake at the time of the incident. The entire family of the victim stayed in the house built of mud sheets. As per P.W.-1 and P.W.-5, the victim had screamed during rape, and in a colony, where 100-200 people stayed, it is not possible that screaming of the victim could not be heard by anyone else, and apart from the father-in-law, nobody else in the colony gets to know about the incident. 11. As per P.W.-1 and P.W.-5, the victim had screamed during rape, and in a colony, where 100-200 people stayed, it is not possible that screaming of the victim could not be heard by anyone else, and apart from the father-in-law, nobody else in the colony gets to know about the incident. 11. Another fact, which has been examined by the lower Court, is that the accused - Irshad was a man with a single body, whereas the victim was a healthy woman with a full body, and it was not possible that the accused - Irshad could rape her, who was physically fitter than the accused, by holding both her hands with one hand, and keeping her under control. It is not possible for a normal person to break the drawstring, and control a woman in such a manner to rape her in a colony full of 100-200 people, and houses built close-by. 12. The above-said finding of the learned Trial Court, on the basis of evidence, clearly shows that this is a case of circumstantial evidence, and apart from the statement of the victim, even the medical evidence did not show that a rape was committed upon her, and as per the judgment of the Hon’ble Supreme Court in the case of Raja Naykar (supra), the prosecution has failed to establish its case beyond reasonable doubt. 13. We find no merit in the present Government Appeal, and the same is, hereby, dismissed. 14. Pending application(s), if any, also stand disposed of accordingly.