Munna Alias Rikas vs State on 13 October, 2017

$~54 and 55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 20/2016
Judgment reserved on: 13th September, 2017
Judgment pronounced on: 13th October, 2017

STATE (NCT OF DELHI) …..Petitioner
Through: Mr. Mukesh Kumar, APP for the State
Versus
MUNNA @ RIKAS ANR …..Respondent

Through: Mr. S. B. Dandapani, Advocate for respondent
No. 1.

Mr. Harsh Prabhakar, with Mr.Anirudh Tanwar,
Advocate for respondent No. 2.

+ CRL. A. 957/2015
MUNNA @ RIKAS …..Petitioner
Through: Mr. S. B. Dandapani, Advocate.
Versus
STATE …..Respondent
Through: Mr. Mukesh Kumar, APP for the State.

CORAM:

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

1. Vide impugned judgment dated 30.04.2015 passed by the
Additional Sessions Judge, Special Fast Track Court, Karkardooma
Courts, Delhi, Munna @ Rikas was convicted for the offences
punishable under Sections 376(2)(e)/344/506 of the Indian Penal
Code (hereinafter referred to as ‘IPC’) but acquitted for the offences
punishable under Section 366/372/511/34 IPC whereas Suman
Kumar was acquitted of charges under
Sections 366/344/506(II)/372/511/34 IPC.

2. Munna @ Rikas preferred Crl. A. 957/2015 assailing his
conviction for the aforesaid offences whereas the State has filed
Crl. L.P. 20/2016 and sought leave to appeal against the acquittal
of Munna @ Rikas and Suman Kumar.

3. The brief facts of the case are that on 01.04.2011, on receipt of DD
No. 31A, SI Mukesh Kumar and Constable Ishwar Singh found
accused Suman Kumar at the traffic signal of Shastri Park, Delhi
who informed them that accused Munna@Rikas had kept the
prosecutrix in room C-13, 3rd Floor, DDA flats, Shastri Park, Delhi
whereafter he accompanied them to the above said flat. On
reaching there, they found the accused/respondent No. 1 and the
prosecutrix. In her statement recorded by the police officials, the
prosecutrix stated that she left her home about five or six months
ago and came to Delhi. On reaching Old Delhi Railway Station,
she met an old man, Munna@Rikas/ respondent No. 1 and Suman
Kumar/ respondent No. 2 and accompanied them on their
assurance that they would arrange a job for her. Thereafter
Munna/Rikas took her to Panipat where he confined her in a flat
for 2½ months and raped her repeatedly and also made her
consume intoxicating pills under threat to kill her if she tried to
escape. She further stated that accused/Munna@Rikas took her to
an unknown city and raped her many times and that after about 1½
months, she was taken to a flat rented out from Suman Kumar in
Noida from where she was not allowed to go out. On 01.04.2011,
both the accused persons brought the prosecutrix to a flat at Shastri
Park, Delhi, where she was again raped by accused Munna@Rikas
in the absence of the co-accused Suman Kumar. On the next day, a
heated altercation took place between Suman Kumar and
Munna@Rikas when Suman Kumar objected Munna@Rikas while
he was trying to rape the prosecutrix. Thereafter, the police
officials came to the room and the prosecutrix claimed that both the
accused persons wanted to sell her for the purpose of prostitution.

4. Based on the above statement of the prosecutrix, FIR No. 102/2011
under Sections 344/366/376/506/34 IPC was registered at Police
Station Seelampur and thereafter, the accused were taken into
custody. The site plan was prepared at the instance of the
prosecutrix, evidence was collected and the prosecutrix was
medically examined wherein it was diagnosed that she was
pregnant. Further, as per the documentary evidence of the
prosecutrix, the date of birth was 15.08.1996 which shows that she
was 14-15 years old at the time of the alleged offence but as per the
bone and wrist X-ray of the prosecutrix, her age was opined to be
between 16-18 years on 05.04.2011. The Trial Court, however,
relied upon the judgment in State of NCT of Delhi vs. Shiva
Ors. (Crl. L.P. No. 172/2008 decided on 16.03.2012 by a Division
Bench of the Hon’ble Delhi High Court) and stated that if there
are two possible opinions in a case, the one reclined towards the
accused needs to be considered.

5. Charges under Sections 328/376(2)(e)/366/344/506(II)/372/511/34
of the IPC were framed against Respondent No.1, Munna@ Rikas,
and charges under Sections 366/344/506(II)/372/511/34 of the IPC
were framed against Respondent No.2, Suman Kumar, to which
they pleaded not guilty and claimed trial. The prosecution
examined 19 witnesses and the statements of the accused were
recorded under Section 313 of the Code of Criminal Procedure,
1973.

6. The Trial Court, after scrutiny of the evidences on record observed
that the prosecution had utterly failed to prove the allegations of
kidnapping, wrongful confinement, voluntarily causing grievous
hurt, selling minor for prostitution against the accused persons.

7. The learned Trial Court after hearing the parties vide impugned
judgment dated 30.04.2015 convicted the accused under Sections
376(2)(e)/344/506 IPC but acquitted him for offences under
Sections 328/366/372/511/34 IPC. Further, the Trial Court
acquitted the co-accused Suman Kumar of all offences punishable
under Sections 366/506(II)/372/511/34 IPC.

8. Mr. Mukesh Kumar, learned APP for the State submitted that the
judgments passed by the learned Trial Court is based on
imagination, presumption, conjectures, surmises and thus not
sustainable in the eyes of law and liable to be set aside; that
evidence that surfaced during the course of the trial was not
properly appreciated and a proper appreciation of the facts and
circumstances would have definitely resulted in conviction of
respondents for all offences for which they were charged; that the
respondents were given the benefit of minor
contradictions/improvements which were not fatal or completely
detrimental to the prosecution case; that the learned Trial Court has
erroneously given the benefit of doubt to the respondents with
respect to the age of the prosecutrix even though the same was
corroborated by the testimony of PW-16 and the school records;
that respondent No.2 was a party to the offences for which
respondent No.1 was charged and having common intention which
is clear from the fact that it was only after an altercation that
respondent No.2 called the police despite being conscious of the
fact that the wrongful continuous act against the prosecutrix being
committed by them were called for legal action; that the
prosecutrix was allured by the respondents in order to arrange a job
for her and the same leads to a categorical conclusion that
Section 366 IPC proves against the respondents. Based on the
above submissions, learned APP for the State strongly urgeed for
grant of leave to appeal to challenge the impugned judgment of
acquittal.

9. Per contra, Mr. S. B. Dandapani, learned counsel for the
respondent No. 1 contended that the Trial Court erred in convicting
the respondent No. 1/Munna@Rikas for the offence under
Section 376 (2) (e) IPC as the fact of pregnancy was never
disclosed by the prosecutrix to the respondent No.
1/Munna@Rikas and placed reliance on Om Prakash Vs. State of
U.P. reported in (2006) 9 SCC 787, wherein the Hon’ble Apex
Court observed :

“One of the categories which attracts more
stringent punishment is the rape on a woman who
is pregnant. In such cases where commission of
rape is established for operation of Section
376(2)(e) the prosecution has to further establish
that accused knew the victim to be pregnant. In the
instant case there was no such evidence led. The
Trial Court came to the conclusion that there was
“full possibility” of the accused knowing it. There
is a gulf of difference between possibility and
certainty. While considering the case covered
by Section 376(2)(e) what is needed to be seen is
whether evidence establishes knowledge of the
accused. Mere possibility of knowledge is not
sufficient. When a case relates to one where
because of the serious nature of the offence, as
statutorily prescribed, more stringent sentence is
provided, it must be established and not a
possibility is to be inferred. The language
of Section 376(2)(e) is clear. It requires
prosecution to establish that the accused knew her
to be pregnant. This is clear from the use of the
expression “knowing her to be pregnant”. This is
conceptually different that there is a possibility of
his knowledge or that probably he knew it. Positive
evidence has to be adduced by the prosecution
about the knowledge. In the absence of any
material brought on record to show that the
accused knew the victim to be pregnant Section
376(2)(e) IPC cannot be pressed into service.

10. Learned counsel for the respondent No. 1/Munna@ Rikas further
argued that the testimony of prosecutrix is totally unreliable as well
as full of material contradictions, concealment, improvements,
exaggerations, inconsistencies and thereby does not inspire
confidence and creates a genuine doubt about her version. He
further added that the Trial Court has rightly relied upon the
ossification report after observing the discrepancy in the date of
birth recorded in the school register.

11. Learned counsel for the respondent No. 2/Suman Kumar supported
the impugned judgment and submitted that the Trial Court after
sound appreciation of the evidence adduced by the prosecution, has
rightly acquitted the respondent No.2/Suman Kumar from the
charged offences and the same does not warrant any interference
and placed reliance on Arulvelu Anr. Vs. State reported in
(2009) 10 SCC 206. Learned counsel further contended that the
ocular testimony of the prosecutrix is fraught with inconsistencies,
improvements and riddled with contradictions on numerous counts
which would not be safe to rely on the uncorroborated testimony of
a solitary witness, evidence of whom is not of sterling quality and
is not wholly reliable; that the respondent No. 2/Suman Kumar
would not have come forward to rescue the prosecutrix if he
himself participated in the alleged offence. Reliance was placed on
Kaini Rajan vs. State of Kerala reported in (2013) 9 SCC 113,
Manoharlal vs. State of M. P. reported in (2014) 15 SCC 587 and
Lalla alias Raj Kumar Singh vs. State of U.P. reported in 2004 (2)
Crimes 101.

12. I have heard the learned counsels for the parties, perused the record
and also examined the impugned judgment.

Age of the prosecutrix

13. As per the case of the prosecution, the alleged offence of rape on
the prosecutrix continued for 5-6 months till 01.04.2011. The
prosecution has produced PW16, Head Master, Prathmik
Vidyalaya Basti Rampur, Shiksha Shetra Fatehpur, Mandaw Mau,
UP to show that the age of the prosecutrix at the relevant time was
about 14 years. PW16 has produced the school record of the
prosecutrix which suggests the date of birth of the prosecution to
be 15.08.1996. While examining the said witness the Trial Court
observed “I was not posted in the abovesaid school at the time of
the admission of Sindhu so I cannot say what document regarding
her date of birth was produced by her parents. A small paper was
found pasted between the word 96. On removal of this paper, it is
found that the word 98 has been made as 96”. During cross
examination, PW16 stated that “The date of birth of a child is
recorded in admission register as told by their parents.”

14. On the issue of determination of age of the rape victim, reference
may be made to the judgement of the Supreme Court in Mahadeo
Vs. State of Maharashtra and Anr. Reported in (2013) 4 SCC
637, wherein it has been held that only in the absence of alternative
methods described under Rules (12)(3)(a)(i) to (iii), the medical
opinion can be sought for and in no other case. The said ratio has
been followed by the Apex Court in State of Madhya Pradesh v.
Anoop Singh reported in (2015) 7 SCC 773, wherein it has been
observed that :

“This Court in the case of Mahadeo S/o. Kerba
Maske v. State of Maharashtra and Anr. : (2013)
14 SCC 637, has held that Rule 12(3) of the
Juvenile Justice (Care and Protection of Children)
Rules, 2007, is applicable in determining the age
of the victim of rape. Rule 12(3) reads as under:

Rule 12(3): In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee by
seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or
a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii)
of Clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded
by them, may, if considered necessary, give benefit
to the child or juvenile by considering his/her age
on lower side within the margin of one year.

and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may
be, record a finding in respect of his age and
either of the evidence specified in any of the
Clauses (a)(i), (ii), (iii) or in the absence whereof,
Clause (b) shall be the conclusive proof of the age
as regards such child or the juvenile in conflict
with law.

15. In the instant case, the prosecution has failed to bring forward any
other documents except the school record of the prosecutrix
through PW16 to show her correct age, which casts serious doubt
on its validity. The Trial Court in the absence of any document as
referred under a (i) to (iii) of Rule 12(3) of the Juvenile Justice
(Care and Protection of Children) Rules, 2007, has rightly placed
reliance on the bone age X-Ray report of the prosecutrix which
suggest that the age of the prosecutrix was between 16-18 years on
05.04.2011.

Testimony of the prosecutrix

16. It is a well settled proposition of law that the testimony of the
prosecutrix is generally to be believed by the Courts in the absence
of any other corroboration. However the Courts must be conscious
and satisfied that the testimony of the prosecutrix inspires
confidence, it is trust worthy and credible, as cases where the
testimony of the prosecutrix does not lend any credence the
accused is liable to be acquitted.

17. In Hem Raj Vs. State of Haryana reported in (2014) 2 SCC 395,
the Apex Court observed that:-

“In a case involving charge of rape the evidence of
the prosecutrix is most vital. If it is found credible;
if it inspires total confidence, it can be relied upon
even sans corroboration. The court may, however,
if it is hesitant to place implicit reliance on it, look
into other evidence to lend assurance to it short of
corroboration required in the case of an
accomplice. [State of Maharashtra v.
Chandraprakash Kewalchand Jain: (1990) 1 SCC
550]. Such weight is given to the prosecutrix’s
evidence because her evidence is on par with the
evidence of an injured witness which seldom fails
to inspire confidence. Having placed the
prosecutrix’s evidence on such a high pedestal, it is
the duty of the court to scrutinize it carefully,
because in a given case on that lone evidence a
man can be sentenced to life imprisonment. The
court must, therefore, with its rich experience
evaluate such evidence with care and
circumspection and only after its conscience is
satisfied about its creditworthiness rely upon it.”

18. In Rai Sandeep @ Deepu Vs. State reported in (2012) 8 SCC 21,
the Apex Court has held that :

“15. In our considered opinion, the ‘sterling
witness’ should be of a very high quality and
caliber whose version should, therefore, be
unassailable. The Court considering the version of
such witness should be in a position to accept it for
its face value without any hesitation. To test the
quality of such a witness, the status of the witness
would be immaterial and what would be relevant is
the truthfulness of the statement made by such a
witness. What would be more relevant would be
the consistency of the statement right from the
starting point till the end, namely, at the time when
the witness makes the initial statement and
ultimately before the Court. It should be natural
and consistent with the case of the prosecution qua
the accused. There should not be any prevarication
in the version of such a witness. The witness
should be in a position to withstand the cross-
examination of any length and strenuous it may be
and under no circumstance should give room for
any doubt as to the factum of the occurrence, the
persons involved, as well as, the sequence of it.
Such a version should have co-relation with each
and everyone of other supporting material such as
the recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should
be akin to the test applied in the case of
circumstantial evidence where there should not be
any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged
against him. Only if the version of such a witness
qualifies the above test as well as all other similar
such tests to be applied, it can be held that such a
witness can be called as a ‘sterling witness’ whose
version can be accepted by the Court without any
corroboration and based on which the guilty can
be punished. To be more precise, the version of the
said witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the Court trying the
offence to rely on the core version to sieve the
other supporting materials for holding the offender
guilty of the charge alleged.”

19. Keeping in mind the aforesaid law laid down by the Apex Court, I
find it appropriate to go through the statements of the prosecutrix.

20. PW1 (Prosecutrix), in her complaint Ex.PW1/A stated that:-

“Meri Maa ka dehant 10 saal pehle ho gaya tha
tatha mere pita ne doosri shaadi kar li thi jo meri
sauteli maa Rajkumari ka vyavahar mere prati
acha nahi tha jo mein pareshaan hokar arsa karib
5-6 mahine pehle apna ghar chodkar rail se Delhi
aa gayi jo Poorani Delhi Railway Station par
mujhe ek budha aadmi naam namalum mila jo
baad mein do ladke Munna ve Suman mile jo bude
vyakti ne mujhe oonke saath jaane ko kaha tatha
bataya ki yeh ladke tumhari achi naukari lagva
denge Jo mein oonke saath chali gayi. Jo baad me
Munna mujhe Panipat me le gaya tatha mujhe ek
kamre mein band kar diya tatha mujhe dhamki di
ki agar bhagne ki koshish ki oh jaan se maar
doonga. Jo vanha par Munna ne mere saath kai
baar balatkaar kiya tatha nashe ki goliyan khilai.

Jo Munna ne mujhe Panipat mein karib 2½
mahine rakha tatha iske baad Munna mujhe kisi
namalum shahar me le gaya tatha vanhapar ek
kamre me mujhe band karke rakha tatha vanha par
bhi mere saath oosne kai baar balatkar kiya. Jo
vanha par Munna ne mujhe karib 1½ mahine tak
rakha. Iske baad Munna ne Noida (UP) me mujhe
Suman ke kiraye ke kamre me rakha tatha Suman
ko bataya ki mujh par nazar rakhe jo Suman mujh
par har samay nazar rakhta tha tatha kamre se
bahar nahi jaane deta tha. Jo vanha par Munna
kabhi kabhi aata tha jo suman ne mujhe dhamki di
thi ki agar maine kisi bahar ke vyakti to kuch
bataya to veh mujhe jaan se maar dega. Jo aaj
Munna ve Suman oose Shastri Park, Delhi me ek
flat me le gaye janha raatri me Munna ne mere
saath fir galat kaam kiya Jo oos samay Suman
vanha nahi tha. Jo baad me Munna ne fir se mere
saath galat kaam karne ki koshish ki to me rone
lagi toh vanha par kamre me oos samay Suman bhi
aa gaya tha jo Suman ne Munna se kaha ki mujhe
pareshaan na kare to iss baat par Munna bhadak
gaya tatha Suman se jhagda kiya. Jo Suman kamre
se bahar nikal gaya tatha iske baad aap Suman ke
saath kamre me aaye. Jo Munna ne mere saath
galat kaam kiya tatha Munna ve Suman mujhe
bechne ki firaq me the Jo oosi vajah se mujhe
garbh thahar gaya tha.”

21. In her statement recorded under Section 161Cr.PC, the prosecutrix
stated that :

“xxxx Karib 5-6 months pehle gaon k eek ladke se
mujhe pyar ho gaya tha aur mere oos ladke se
sharirik sambandh ban gaye the jis karan me
garbhwati ho gayi thi aur apne mata pita ve lok
laaj ke karan karib 1 ½ mahine pehle mere ghar
me meri maa se mera jhagda hone ke karan mein
ghar se chali aayi aur rail pakadkar poorani delhi
railway station par aa gayi janha mujhe ek buda
vyakti mila aur mujhe pareshan dekhkar mujhe
apne ghar le gaya. Mein anjaan hone ke karan
oos jagah ka pata nahi bata sakti. Uske baad oos
bude vyakti ne mujhe Munna ke saath bhej diya
aur kaha ki yeh tumhe kanhi kaam dilwa dega aur
Munna ke saath Suman bhi tha. Jo Munna mujhe
Panipat le gaya aur Suman Delhi me chod diya.
Munna ne mujhe Panipat me ek makaan me rakha
jo ooski bahan ka makaan tha jo Munna ne mujhe
nashe ki goli khilakar mere saath galat kaam kiya
oos samay Munna ki bahan ve ooske pati gaon
chale gaye the. Jo Munna ne mujhe dhamki di ki
agar kisi ko kuch bataya to jaan se maar dunga.
Maine dar ke karan kisi ko kuch nahi batlaya. Jo
Munna ne aas paas ke logo ko ve apni bahan ve
behnoi ko bhi yeh batlaya tha ki mein ooski patni
hoon. Jo Munna ne vanha par mere saath jabran
kai baar galat kaam kiya. Karib 15-20 din baad,
jab Munna ki badi bahan ve bahnoi apne gaon se
vaapis aa gaye, toh Munna Mujhe Noida me
Suman ke Ghar par le aaya janha Munna ve
Suman ne mujhe phir se dhamki di ki agar kisi ko
kuch batlayato jaan se maar denge iss dar ke
kaaran maine aas paas kisi ko kuch nahi bataya.
5-6 din Munna ne mujhe Suman ke kamre me
rakha aur Suman ki gairmaujudgi me Munna mere
se jabran galat kaam kiya. Uske baad Munna aur
Suman mujhe Delhi le aaye tatha mujhe ek makaan
me rakha janha Munna ne Suman ki gairmaujudgi
me mere saath galat kaam kiya. Munna aur
Suman me is baat par jhagda hua tatha Suman
gusse me bahar chala gaya aut thodi der baad
police ko lekar aa gaya. Suman aur Munna mujhe
Delhi me bechne laaye the.”

22. In her statement recorded under Section 164 Cr.PC, the prosecutrix
stated that :

“Mere ghar me jhagda hua. Gusse se me nikal
gayi. Mein station par aayi, ek buda mila. Bude
ne mujhe apne ghar 2 din rakha. Ooske baad bude
ne mujhe Munna ke saath Panipat bhej diya aur
kaha ki vo mujhe kaam laga dega. Yanha par
Munna ne nashe ki goliyan khilakar, kapna
nikalkar balatkar kiya. Ooske baad mujhe Noida
mein laaya Suman ke ghar par. Vanha hume 5/10
din rakha. Vanha bhi mere saath sambhog kiya
Munna ne. Vanha se hume Delhi laya. Vanha bhi
humse balatkar kiya toh Suman aur Munna mein
jhagda hua. Dono hume bechna chahte the, voh
apne liye aur voh apne liye. Maine bahar nikal kar
police waalon ko phone kar diya aur police ne un
dono ko pakad liya. Voh dono hume dhamkate the
ki ghar chali gaogi to hum tumhe jaan se maar
denge.”

23. The Prosecutrix stepped into the witness box as PW1 and deposed
that :

“I was going to school when the two accused
persons present in Court today met me and asked
me as to where I was going near my village. They
both told me that my mother was calling me.
When I accompanied the accused, they caught hold
of me and they did not leave me inspite my
shouting. Both the accused persons then brought
me to Delhi. The accused persons gave me tablets
due to which I used to get intoxicated and then
they would rape me. They had also threatened me
that if I narrated the incident to anybody they
would kill me and they had also threatened me that
I should not leave the house of the accused. The
accused persons also tried to take me to their
house. Both the accused persons wanted to sell
me. Accused Suman had made a call to the police.
Police arrived and both the accused persons were
arrested by them.

Accused Munna had taken me to Panipat, the date
I do not remember. I was kept in Panipat for two
months by accused Munna. Even in Panipat I used
to be administered some tablets by accused Munna
on taking of which I used to become sort of
unconscious and in that state I could not hear what
the accused was saying. Accused Munna used to
rape me after giving me tablets in Panipat.
Accused Munna had taken a room and had
detained me in the room during my stay in
Panipat. From Panipat accused Munna brought
me to Noida in the house of Sumna. I was detained
by the accusedin the house at Noida for about
three months. In Noida also the same incident was
repeated by the accused Munna. I do not
remember to which place I was taken by the
accused persons from Noida. I do not remember
my date of birth.”

24. During her cross examination, the prosecutrix/PW1 denied that her
mother had expired, her father had remarried, she came to Delhi
willingly 5-6 months ago and she ever met an old man at the Old
Delhi Railway Station, however, she admitted to being taken to
Panipat, raped there by accused Munna@Rikas, she was threatened
by the accused so as to prevent her from running away, the accused
thereafter took her to an unknown place and raped her after
administering to her some intoxicating tablets. PW1 further
admitted that in Noida she was kept at the house of co-accused
Suman Kumar who used to keep a watch on her and did not allow
her to leave; she admitted that when she was brought to the flat at
Shastri Nagar, Delhi the accused Munna@Rikas raped her in the
absence of co-accused Suman Kumar and when he again tried to
rape her in the presence of the co-accused, the prosecutrix started
crying and that after some heated arguments, Suman left the room
and called the police, who reached and apprehended the accused.
During her cross-examination she denied that she was residing with
the accused of her own will.

25. After careful analysis of the testimonies of the prosecutrix (PW1),
it appears that there are number of inconsistencies and
contradictions in her statements recorded at different stages,
however, her statement regarding the offences against her was
consistent throughout. There are doubts as to how the prosecutrix
reached Delhi and it is not clear whether she came to Delhi
willingly after discord with her step mother or was abducted from
outside her school. Thus, the Trial Court is correct in holding that
the prosecution could not prove beyond reasonable doubt that the
accused persons had kidnapped the prosecutrix.

26. Further, the MLC report and the FSL report clearly point towards
the factum of sexual intercourse between the respondent No. 1 and
the prosecutix. However, as per the FSL report, the prosecutrix
was subjected to sexual intercourse a few hours before she was
discovered by the police which goes to show rape was committed
on the prosecutrix. The defence taken by the accused that the
prosecutrix had consensual sexual relations with him which is
pointed out from her silence about the incident, holds no ground as
mere silence cannot be taken as proof of consensual sexual
relations as she has also stated that she was being threatened by the
accused. Thus, any act of sexual intercourse in the absence of
consent would amount to an act of rape.

27. Further, to my mind, the prosecution miserably failed to adduce
any iota of evidence to show that the accused persons ever intended
to sell the prosecutrix for the purpose of prostitution.

28. The contention of the prosecution that respondent No.2/Suman
Kumar called the police only after he had an argument with
respondent No.1/Munna@Rikas does not prove that he had
common intention with respondent No.1/Muuna@Rikas for the
offences that he committed against the prosecutrix.

29. In Tota Singh and Anr. Vs. State of Punjab reported in AIR 1987
SC 108, the Hon’ble Supreme Court made the following
observation:

“…..the jurisdiction of the Appellate Court in
dealing with an appeal against an order of
acquittal is circumscribed by the limitation that no
interference is to be made with the order of
acquittal unless the approach made by the lower
court to the consideration of the evidence in the
case is vitiated by some manifest illegality or the
conclusion recorded by the court below is such
which could not have been possibly arrived at by
any court acting reasonably and judiciously and is,
therefore, liable on an appraisal of the evidence
adduced in the case and the court below has taken
a view which is a plausible one, the Appellate
Court cannot legally interfere with an order of
acquittal even it is of the opinion that the view
taken by the court below on its consideration of the
evidence is erroneous.”

30. In State of Rajasthan Vs. Raja Ram reported in AIR 2003 SC
3601, the Hon’ble Supreme Court held as under:

“there is no emerge on the appellate court
reviewing the evidence upon which an order of
acquittal is based. Generally, the order of
acquittal hall not be interfered with because the
presumption of innocence of the accused is further
strengthened by acquittal. The golden thread
which runs through the web of administration of
justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other
pointing to his innocence, the view which Is
favourable to the accused should be adopted. The
paramount cnsidreation of the court is to ensure
that miscarriage of justice is prevented. A
miscarriage of justice which may arise from
acquittal of guilty is no less than from the
conviction of an innocent……….The principle to
be followed by the appellate court considering the
appeal is to interfere only when there are
compelling and substantial reasons for doing so. If
the impugned judgement is clearly unreasonable, it
is a compelling reason to interfere.

31. In Sudarshan Kumar vs. State of H.P. reported in [2014 (14)
SCALE 276], the Hon’ble Apex Court observed that:

“29. It has been stated and restated that a cardinal
principle in criminal jurisprudence that
presumption of innocence of the accused is
reinforced by an order of acquittal. The appellate
court, in such a case would interfere only for very
substantial and compelling reasons. There is a
plethora of case laws on this proposition and we
need not burden this judgment by referring to
those decisions. Our purpose would be served by
referring to one reasoned pronouncement entitled
Dhanapal Vs. State by Public Prosecutor,
Madras: (2009) 10 SCC 401 is the judgment
where most of the earlier decisions laying down
the aforesaid principles are referred to. In para
39, propositions laid down in an earlier case are
taken out of as under:

39. In Chandrappa and Ors. v. State of Karnataka
(2007) 4 SCC 415, this Court held:

(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. 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.

41. The following principles emerge from the cases
above:

1. The accused is presumed to be innocent until
proven guilty. The accused possessed this
presumption when he was before the trial court.
The trial court’s acquittal bolsters the presumption
that he is innocent.

2. The power of reviewing evidence is wide and the
appellate court can re-appreciate the entire
evidence on record. It can review the trial court’s
conclusion with respect to both facts and law, but
the Appellate Court must give due weight and
consideration to the decision of the trial court.

3. The appellate court should always keep in mind
that the trial court had the distinct advantage of
watching the demeanour of the witnesses. The trial
court is in a better position to evaluate the
credibility of the witnesses.

4. The appellate court may only overrule or
otherwise disturb the trial court’s acquittal if it has
“very substantial and compelling reasons” for
doing so.

5. If two reasonable or possible views can be
reached – one that leads to acquittal, the other to
conviction – the High Courts/appellate courts must
rule in favour of the accused.”

32. Keeping in view the above settled law and totality of the facts and
circumstances of the case, I do not find any reason to interfere with
the impugned judgement passed by the Trial Court. Accordingly,
the present leave petition being devoid of merit is dismissed and
the appeal preferred by accused Munna@Rikas also stands
dismissed.

33. Ordered accordingly.

SANGITA DHINGRA SEHGAL, J
OCTOBER 13, 2017
//gr

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